Scottish Court of Session Decisions

Subject_1 PROVISION TO HEIRS AND CHILDREN.

Margaret, &c Muirhead
v.
Mary Dickson

1754, Feb. 6.
Case No. No. 20.

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James Muirhead, father to those two pursuers, by his contract of marriage in 1665 with Margaret Lindsay, with advice and consent of Sir George Lockhart of Carnwath, and Sir John Lockhart of Castlehill, whose relation the Lady was, provided his estate of about 3000 merks yearly, and conquest, to the heirs-male of the marriage, whom failing, to the heirs-male of his body in any other marriage, whom failing, to the heirs whatsoever of that first marriage, and the contract contains the obligation,—(The clause is quoted in the text.) I thought it necessary to take down the clause pretty fully, because the Judges differed greatly in their opinions, and each side laid hold of some parts of the clause. This small estate was at the time burdened with a liferent to his mother, and was by the contract burdened with a contingent liferent to his wife of 800 merks in case of children, and 1200 merks in case of none, and, it was said, burdened also with other debts. He died in 1720 (1710) leaving four children, two sons and two daughters, besides his heir George; and before his death, he and his eldest son, with consent of his wife, granted bonds of provision to his four younger children; to the second son 2000 merks, to the third L.1000, to his eldest daughter, Margaret, 2500 merks, and to the second, Katharine, L.1000, with a substitution in case of the death of any of them to the survivors, in satisfaction of all bairns part of gear, &c. that they could claim through; the death of their father, which provisions were accordingly paid and discharged. George succeeded to the estate, and died in 1751, and his two brothers being dead, and the two sisters yet maidens being past the age of having children, the eldest being then about 60, he settled his small estate on his wife, burdened, as was said, with 8000 merks of debt. These two ladies therefore sued her for payment of their portions in the marriage contract. (What follows in the manuscript is subjoined to the case in the text.)