Agnes Dundas v. The Laird of Ardross and the Laird of Touch
Date: 18 February 1671 Case No. No 176.
A mother having lent her son's money, and taken a bond in his name, it was found to be the son's evident, though she retained it in her own custody, and afterwards discharged it.
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The Laird of Ardross having granted bond to umquhile Mr Henry Mauld and his spouse, and their heirs, of 8000 merks, and, after his decease, granted a bond to the relict, bearing to have borrowed 2000 merks from her, and obliging him to pay the same to her in liferent, for her liferent use only, and, after her decease, to William Mauld, her son, and his heirs; and another bond, bearing him to have received from the relict 1000 merks, in name of Henry Mauld her son, and obliging him to pay to the said Henry and his heirs; and after all, he granted a bond of 10,000 merks to the relict, her heirs and assignees, which was made up of what remained due of all the three; this bond the relict assigned to the Laird of Touch; who having charged Ardross, and he having suspended, there arose a competition betwixt Touch, as assignee, and Agnes Dundas, as heir and executrix to Mr Henry, William, and Henry Maulds, and thereupon a division of the sums betwixt the parties. Thereafter, Agnes Dundas pursues Ardross to make payment to her, as heir and executrix to William and Henry Maulds, of 2000 merks which he was addebted to the said William, and of 1000 he was addebted to the said Henry; whereupon he hath deponed that he was debtor by all the said bonds before related, and no otherways; and that, in the former decreet, by mistake, it was expressed that the 10,000 merks bond was made up of the 8000 merks bond and of 2000 merks of annualrent thereof; whereas, the truth was, it was made up by what was resting of the two bonds due to William and Henry; which he produced cancelled of the tenor foresaid. It was alleged for Agnes Dundas, The sums of these bonds behoved only to belong to her, as heir and executrix to William and Henry Maulds, and not to Touch, as assignee by the relict. It was answered, 1st, That the said Agnes had homologated the prior decreet and division therein made, by giving discharges accordingly, could not claim any more. 2dly, Another having taken a bond in the name of her two sons, being bairns in her family, might lawfully alter the same at her pleasure, there being nothing more ordinary than that fathers grant bonds of provision to their children, or take bonds from their creditors in their names, yet these being never delivered, the parents may dispose of them at their pleasure. It was answered for the executrix, That the allegeance of homologation is not relevant, because it is emergent by Ardross's oath that the 10,000 merks bond was not made up by the annualrent, but by the said two bonds, so that there could be no homologation of that whereof the executrix was excusably ignorant. To the second, That albeit fathers granting bonds of provision in name of their children, may alter the same at any time before delivery, yet where they lend out the sum to a creditor, and take him obliged to a child in fee, that cannot be altered, especially where the parent is a naked liferenter, and hath not reserved a power to lift and dispone; but whatsoever be in the case of a father providing his children, who can by no presumption be thought to have any means, yet, after the father's death, a mother taking a bond in the name of a bairn, it must be presumed to be the bairn's money, coming by the father or otherwise; and the mother having stated herself naked liferentrix in the one bond, and having no interest in the other bond, she could not recal or alter the same in prejudice of the children, especially seeing they were infants, and had not tutors to care for them. It was answered, That the mother had held count for the whole means of the father, and so had cleared any presumption that these bonds could be of his means; but she liferented the whole estate, and made up these bonds out of the rents and annualrents, and denied to be tutrix or protutrix, so that the money being merely her own, and her children having died before her, she might warrantably alter the bond.
The Lords found, That the mother could not alter the bonds taken in favour of her children from a debtor, being of the tenors above written, wherein she was naked liferenter of the one, and had not so much as a liferent of the other, and that the sums were rather presumed to be of the bairns means than her own, seeing they had no tutor, and any meddling with their means was by herself, and that their executrix could not now be put to instruct what means they had, or be accountable thereupon.
