Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Dowie
v.
Elison

Date: 21 June 1677

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Janet Dowie, by her contract of marriage with Robert Elison, being provided to her liferent of all sums, goods, and gear, conquest during the marriage; and, if in case of children, to the fee of the half: pursues a declarator of her right of the said contract against her husband's executors: who alleged, Absolvitor; because the defunct, by his testament, had provided the pursuer in the annual-rent of 5000 merks, in satisfaction of what she could claim at his death; whereby there was jus quæsitum to her, inconsistent with the contract of marriage; and, except she refused the provision in the testament, and continued her right, it did extinguish the provision of the contract.

It was answered, That the provision of the testament became not her right till she accepted it; and she was not clear yet whether to accept it or not, till she found, by the event, which of the provisions were most effectual.

The Lords found the pursuer obliged either to reject the provision in the testament, being now shown and produced to her; or otherwise they sustained the defence thereupon, to exclude her from the contract.

Vol. II, Page 526.