Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Francis Irvine, Brother to the Laird of Drum,
v.
The Viscountess of Frendraught

Date: 22 February 1677

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In a pursuit, at the said Francis's instance, as having right to several debts due by the said Viscountess, as intromissatrix with his goods and gear,—It was alleged by the Viscountess, That she was confirmed executrix-creditrix, and her own debts would exhaust the whole inventory of the testament; and having given in a condescendence, bearing, that, by a bond of provision in contemplation of her marriage, she is provided to four thousand merks of yearly jointure, if there should be no heirs-male of the marriage, unless she resolved not to marry, but resolved to be tutrix to her own children; whereupon she craved, that she not being married, and being content to be tutrix to her son, if he had any present estate, that any intromission she had might be a security for implement of the said provision.

It was alleged for the pursuer, That her provision to the four thousand merks was only in case she had no children of the marriage; but so it is, that there is a son of the marriage; and albeit there is no exception in the provision and restriction to three thousand merks, that, in case that there were children, yet if she did not marry, and was content to be tutrix, she should have the full four thousand merks; yet she cannot crave the benefit thereof, because it was still in her power to marry; and such conditions are null in the law, quia matrimonia debent esse libera.

The Lords having considered the bond of provision, and the conditions and restrictions of the yearly four thousand merks provided to the Lady in jointure; which was not only to stand good in case there were no children of the marriage, but likewise albeit there were children, in case she should resolve not to marry, but to be tutrix; therefore, they found, that she should have full right to the four thousand merks so long as she remained unmarried; and that if any craved to be tutor to her children, she would crave to be preferred, as being willing to undergo that burden.

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