Right of Electing, with Advice and Consent. - Discharge of all Claims against a Predecessor's Estate. - The term Heirs Female. - Provision to Children in full of all Claims. - The term Children in a Testament.
John Fife v. The Lady Nicolson
Date: 29 November 1751 Case No. No 52.
A man gave his daughter a bond of provision for 3000 merks, in full of all she could claim as legitim, or any other way. He was afterwards pursued for the sum of 2000 merks, left to his daughter by her grandfather; and it was urged, that the bond of provision was only in lieu of whatever she could claim as child of her father. The Lords rejected her claim.
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John Fife, as assignee by Magdalen Scot his wife, pursued the Lady Nicolson, as representing Sir James Nicolson her husband, for 2000 merks Scots, assigned to the said Magdalen Scot, by Sir John Lauder of Fountainhall, her grandfather; for which sum she was confirmed executor-creditor to him; and the same given up in inventory, by Thomas Scot of Maleny, her father, and administrator in law, who was alleged to have intromitted therewith; and in which confirmation Sir James Nicolson was cautioner.
The Lords, as is observed 6th February 1750,* found, That Sir James Nicolson was cautioner in the confirmation for Scot of Maleny, the administrator in law.
Pleaded further for the defender, Maleny gave his daughter a bond of provision for 3000 merks, in full of what she could any ways ask or claim of him as legitim, or any other manner of way whatsoever, of which she accepted and has recovered payment.
Answered, The provision was in lieu of all she could claim as a child; not of any debts her father might be owing her. Maleny, by the tailzie of his estate, had power to burden it with four year's rent to his younger children, to whom he granted bond for 23,000 merks, dividing the same among them, and thereby giving this 3000 merks to Magdalen, in full of all they could ask; so that he was not discharging any obligation upon him.
Replied, Maleny had no other fund but this faculty to provide his children; which it was not his purpose wholly to exhaust, or to divide among them; for, estimating his estate at 6000 merks, he gave them only 23,000; whereas he might have given them 24,000 merks; and his eldest daughter being provided, he past her by.
* D. Falconer, v. 2. p. 145. voce Tutor and Pupil.
The Lords sustained the defence, That Magdalen Scot had accepted of her provision. See Presumption.
Reporter, Shewalton.Act. Lockhart.Alt. R. Craigie.Clerk, Pringle.
Fol. Dic. v. 3. p. 124. D. Falconer, No 239. v. 2. p. 291.
