Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CONDITION.
Subject_3 Import of a clause in a settlement by a grandfather, that, in the event of his grandchildren marrying without first having advised with his trustees, and obtained the consent of the majority of them, regularly entered in the sederunt book appointed to be kept by them, and duly signed; the grandchildren so marrying shall forfeit their provision under that settlement.

Jean Graham and Her Husband
v.
Mr James Bain

Date: 9 February 1774

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[Fac. Coll. VI. 282; Dictionary, 2,979.]

Coalston. Here the question is between the words and the intendment of the testator.

Gardenston. The young people knew nothing of the proviso. The consent of the grandmother was granted; she was the trustee most interested. Mr Kincaid, another trustee, gave his consent, because he thought the intended husband a deserving man. The other trustees were not consulted, because Mr Kincaid did not recollect the clause in the deed, and consequently made no mention of it to the parties.

Hailes. I doubt how far a man can lawfully throw in such a proviso, leaving a succession of strangers to determine as to the fitness of matches offered to his descendants. According to this rule Mr Bayne, and his session, may have the presentation to all the young women of his flock.

On the 9th February 1774, “the Lords found the provision due adhering to Lord Gardenston's interlocutor, and refusing a petition without answers.

For the Petitioners, Charles Hay.