Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sandilands and Mr Matthew M'Kell and Her Husband v. Her Children and their Tutors
1671.
January11. and
November28.
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January 25. This is the relict of Bailie Alexander Sandilands, who married this Mr. M'Kell against all her friends' will. By contract of marriage betwixt her former husband and her, she was provided to a jointure: but it was not declared to be in satisfaction, nor was she debarred from terce and third. Whereupon she intents a pursuit, against her children and their tutors, for their interests, of declarator of her right to a terce and third.
Whereunto it was answered,—That she could never be heard to claim a terce, &c. because in that same contract which she hath assented to, there is a clause whereby the whole conquest during the marriage is provided to himself in liferent, and to the bairns of the marriage in fee; now what, shall the whole go to them in fee, if it bear a defalcation of a third to her? And therefore it must be interpreted to have been the meaning of parties by that clause to seclude her from it, seeing she is not named in the clause of conquest.
Whereto it was replied,—That she was founded in jure communi which ordains wives to have a terce, unless the same be per expressum discharged; and she can never be supposed, by such tacit and remote presumptions, to be prejudged therein, especially considering that in dubiis pro dote est respondendum.
Notwithstanding whereof the Lords, in presentia, found her debarred therefrom by the conception of the foresaid clause; only found her to have right to a third of the household plenishing.
It was thought strange how they came to find her to have right to this last more than to the rest, since there is a like reason in all.
Advocates' MS. No. 108, folio 86.
28th November 1671.—Agnes Sandilands and Mr. Matthew M'Kell, now her spouse, against her children and Patrick Tailzefer, their tutor.
We find before at number 108, that in her pursuit for a third, the Lords found the clause in the contract of marriage, anent the conquest, did seclude her from any third of her first husband's means and moveables, except a third of the household plenishing. Yet, upon a supplication given in by her, the Lords found this allegeance relevant to give her an interest to a third of what superplus she should prove her husband had more than the L.10,000 added to her tocher, to make up her jointure, viz. that her umquhile husband, before and at the time of the contract of marriage with her, had more sums and other means and estate than the said L.10,000 contracted. For proving whereof there was an account produced, of L.10,000 more, which they had alleged he had at the time of the marriage; and for instructing of it produced sundry memorandums under the defunct's hand, wherein he makes an estimate of his own estate.
Against which many things were objected, as making no probation of his fortune, viz. either they are not written with the defunct's own hand; or are two years before his marriage, and so cannot prove what he had the time thereof; or were given up largely by him to be a ground of credit to him, being a young man and a merchant, and to be an inducement to his uncle, the Dean of Guild, to give him a greater tocher; upon which account he might also omit or conceal his debts; or they are desperate sums, or sums owing by bonds bearing annualrent, and so heritable quoad relictam, &c.
