Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert M'Millan v. Agnes Binny
Date: 8 December 1696
Click here to view a pdf copy of this documet : PDF Copy
The Lords advised the debate between Robert M'MilIan, flesher, and Agnes Binny, relict of Andrew Nisbet, candlemaker in Edinburgh. The point was, —She founded on a disposition from her husband.
Alleged,—It was omnium bonorum, and on deathbed, and so cannot prejudge lawful creditors.
Answered,—She made use of it only to fortify her contract of marriage.
Replied,—It bears no relation thereto, and expresses no other cause but love and favour.
Duplied,—That hinders not her founding upon it to connect it with an onerous antecedent cause; as was found, 26th January 1669, Lady Brae against Chisholm.
The Lords thought it dangerous to creditors, if such latent general dispositions in lecto were sustained without confirmation; yet found it a colourable title to purge vitiosity. And it being put to the vote, Whether it should make her liable in valorem, or bring her in pari passu with the creditors, but would not give her a preference: and the bringing her in equally carried but by one vote; for sundry were clear to find her liable for her intromission quoad valorem; reserving her pursuit on her contract of marriage, as accords.
