The Representatives of Sir George M'Kenzie v. The Creditors of Kinminity
Date: 18 January 1749 Case No. No 8.
A person granted a bond to another, on condition of marrying with the granter's consent. The granter proposed a marriage on certain conditions, to which the parties did not agree. They married privately without the consent. The bond was found due.
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Alexander Sutherland of Kinminity became bound by his contract of marriage, failing heirs male, to pay to one daughter 8000 merks Scots.
Of this marriage there was issue, Alexander and Mary; when the Lady died, and Kinminity married again Elizabeth Edwards, whom he predeceased, leaving no issue by her.
Elizabeth Edwards granted bond to Mary Sutherland, for love and favour, for 4000 merks; providing that the sum should return to herself, if she married without her consent, in writing under her hand; or, if it should happen, by the death of her brother, that she should come to have right to the provision in her favour, contained in her mother's contract of marriage.
Alexander Sutherland died, and Mary married to another Alexander, the heir-male of Kinminity; and disponed to him “all debts and sums of money, all goods and gear whatsoever, heritable or moveable, and all lands, tenements, and other heritable estate, to which she had right as heir or executor to her brother, father, or grandfather; and particularly the sum of 8000 merks, provided to her as the only daughter (heirs-male having failed) of the marriage.”
Elizabeth Edwards married to Sir Kenneth M'Kenzie of Cromarty, to whom she disponed all her effects, amongst which was a claim on the estate of Kinminity.
Sir George M'Kenzie, son of Sir Kenneth, produced his interest in the ranking of the creditors of Kinminity; to which was objected, by the other creditors, compensation on Elizabeth Edward's bond.
The Lord Ordinary, 6th January 1749, ‘found, that as it was admitted the heir-male survived his father several years, Mary Sutherland was not by his death entitled to the provision of 8000 merks, provided to an only daughter in case there were no heirs-male procreated of the marriage; and therefore repelled the objection made against the said bond of provision, founded upon a supposition that the said Mary Sutherland had right by the death of her said brother, to the said provision of 8000 merks contained in her mother's contract of marriage; and found the bond of 4000 merks, granted as a provision by Elizabeth Edwards, if found due, was conveyed by Mary Sutherland to her husband, by their contract of marriage; and allowed, before answer, the creditors to prove that the marriage was brought about by the mediation of Elizabeth Edwards, and all circumstances tending to evince her consent thereto.’
On a reclaiming bill observed, that the terms of the contract did not comprehend this bond; but as the provision of 8000 merks, on supposition of its being due, was expressly conveyed, this ought to be held as conveyed coming in place thereof.
The Lords adhered.
1750. July 18.—In this cause the Lords having found, as is observed 18th January 1749, that the bond by Elizabeth Edwards was conveyed by Mary Sutherland to her husband, in her contract of marriage; and as the said bond was under the condition of her marrying with the granter's consent, having allowed her to prove that the marriage was brought about by the procurement of the said Elizabeth Edwards, it was proved that she first projected the marriage, and that there was a treaty relating to it, wherein she proposed certain settlements to be made of the estate of Kinminity, which were not agreed to by the young people and their friends, who thereupon married privately; after which she visited and received visits from them.
There had also another bond been granted to Mary Sutherland, by Strachan of Glenkindy, on the condition of her marrying with Elizabeth Edward's consent, which had been recovered out of his estate.
Pleaded in defence, That the granter, though she was willing the marriage should take effect, on certain conditions, yet the conditions not being fulfilled, had not consented thereto.
The Lord Ordinary, 15th February, ‘having considered an excerpt, produced from the ranking of the creditors of the deceased Sir Patrick Strachan of Glenkindy, whereby it appeared, that upon the deceased Elizabeth Edwards her granting the bond of provision in question, and depositing the same in his hands, he the said Sir Patrick Strachan did execute a bond relative to the same, for an equal sum, payable at the same term, and under the same condition, and for which the said Mary Sutherland and her husband were preferred in the said ranking; found it proved that the marriage between Alexander Sutherland of Kinminity, and Mary Sutherland his spouse, was brought about by the mediation and interposition of the said Elizabeth Edwards; and that she discovered even an anxiety to have the said Alexander and Mary Sutherland joined in marriage. As also, found it proved, that after the marriage the said Elizabeth Edwards did not only visit the married persons, but that they also lived in family for some time, and that she continued still zealous to do them all the service that was in her power, and discovered the same by the scope and tenor of the marriage articles between her and Sir Kenneth M'Kenzie; and also seeing there was no evidence produced that the said Elizabeth Edwards, at any time during her life, ever called for, or revoked the said bond, or discovered any intention to take advantage of the said clause, found, that notwithstanding the said Elizabeth Edwards gave no written consent to the marriage, nor was present at the celebration of the same, the said bond could not now be quarrelled or impunged on account of the foresaid clause, by the heirs or creditors of the said Sir Kenneth or Sir George M'Kenzies.’
It was urged, That Elizabeth Edwards, before her death, made a general disposition to her husband, without burdening him with this bond.
On two bills and answers, the Lords adhered.
Petitioner, Tho. Hay.
Fol. Dic. v. 3. p. 308. D. Falconer, v. 2. No 44. p. 42. & No 152. p. 176.
*** See Kilkerran's report of this case, No 35. p. 2977.
