Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Two Daughters of Crookston v. John Borthwick, their Brother
Date: 4 July 1694
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The cause of the two daughters of Crookston, against John Borthwick, their brother, for payment of 12,000 merks, contained in their mother's contract of marriage, was reported. Alleged,—All these provisions to daughters of a marriage are only in case there be no sons, and the estate tailyied to an extraneous heir; so that the daughters, as heirs of line, are debarred; then portions are especially provided to them; but ita est there is an heir-male of the marriage here, and the clause is conceived by mere mistake; for never was it dreamed that daughters should have 12,000 merks off their own brother, by a contract, unless there were a bond of provision. Answered,—The clause is most express; and, whatever is the usual style, yet paction may derogate therefrom; et in claris non est locus conjecturis: and, in regard of this provision, the father had disponed all his moveable estate by his daughters; so, if they got not this, they would he absolutely frustrated, and get nothing. The Lords found the clause so express that they decerned conform; though it was both unusual and exorbitant, yet it was not unlawful.
