The condition in a bond of provision to daughters, that they should proceed in all their affairs by advice of certain friends, found to be valid and effectual.
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The deceased Lord Semple granted a bond of provision to his daughters, specifying their particular portions, and bearing this clause, ‘That they should proceed in all their affairs by advice of his friends therein mentioned, and in case they did transgress, or did not carry themselves virtuously, the bond as to these should be null, at least his friends, or the major part of them on life, should have power to restrict, and to apply the restriction to such other of the daughters as they thought fit.’ The portion of his eldest daughter Mistress Anna, is 10,000 merks by a former bond of provision, ‘having only power to himself to alter,’ and she having married the Laird of Fetterneer, he pursues for her portion. The defender alleged, That she married without his friends consent, and that therefore they had restricted her portion to 6000 merks, suitable to the quality and fortune of this husband, and bearing this consideration, ‘That his fortune was but small, and lying far from her friends in Aberdeenshire.’ The pursuer answered, That all clauses against the freedom of marriage are null, 2do, That Mistress Anna could not be said to transgress, unless the second bond had been intimate to her, or known by her. 3tio, Though it had, and though she had required their consent, and they had refused it; yet such clauses could take no effect, unless they could instruct a just cause of the refusal, much more when they were past by.
The Lords found the clause of the bond was just and valid; but it could not be understood to be transgressed, unless it had been known to the Lady before her contract of marriage, and in that case, ordained her friends to declare their relevant reasons of denying their consent, and to instruct the same.
