Scottish Court of Session Decisions

In March 1791, Mrs Glendonwyn, or Gordon, disponed her lands of Crogo and others to her husband, William Glendonwyn of Parton, under the burden of the provisions settled, or to be settled, by her upon her children. In July following, Mrs Glendonwyn executed a bond of provision for £1250 in favour of each of her three daughters, the eldest of whom afterwards married Sir James Gordon of Letterfowrie, Bart. In the same month Mrs Glendonwyn executed an additional bond for £100 in favour of Lady Gordon. Both bonds were made payable within twelve months after the decease of the longest liver of her and her husband.

On the occasion of the marriage of Lady Gordon (which took place subsequent to the dates of the bonds) a marriage contract was executed to which her father was a party, and which bore “that the said £2000 of tocher now paid by the said William Glendonwyn with his said daughter, shall be in full of all the said Mary Glendonwyn can claim in right of her said father, or of the deceased Agnes Gordon, her mother, in any manner of way, and in full of every claim competent to her of bairn's part of gear, legitim, portion natural, executry, and every thing else that she could ask or claim by and through the decease of her said father and mother, excepting what the said William Glendonwyn may think fit further to grant or bestow of his own good will allenarly.”

Mr Glendonwyn survived his wife and died in 1809. He had previously conveyed his estates to his son-in-law, William Scott, under burden of the price. Scott having become bankrupt, a ranking and sale of his estates was brought, and after the lands were sold, and after the process had depended for about fifteen years, a claim was made, in 1832, by Lady Gordon for £1350, with interest, in terms of the bonds of provision. Miss Xaveria Glendonwyn and other creditors objected that this sum was discharged by the terms of the marriage contract, and the tocher of £2000 would not otherwise have been paid. In support of this plea they founded not only on the lapse of time before the claim was made, while all the other claims of Lady Gordon had been timefully stated in the ranking, but also alleged that the correspondence of parties before and after the date of the marriage would prove that it had been the intention of the parties to discharge the bonds of provision. They accordingly craved a diligence for the recovery of such writings.

Lady Gordon answered that the clause in the marriage contract was not ambiguous, and therefore it did not admit of any extrinsic explanations, and its true legal import did not include a bond of provision in which Lady Gordon was at that time a creditor of her father to an amount which would have made the tocher nearly nominal if it had been to discharge that bond. ^*

The Lord Ordinary refused the diligence. Afterwards his Lordship “found Lady Gordon entitled to be ranked in her own right to the principal sum contained in her mother's bond of provision, and to the interest thereon, in right of her husband, Sir James Gordon, and ranked and preferred her accordingly, and decerned, but found that the ranking, in so far as regards the interest, is subject to any claim of compensation, founded on the bills, referred to in the objections, at the instance of the executors of the late William Glendonwyn, against the said Sir James Gordon, in so far as they can instruct the same.”

Miss Glendonwyn, and others, reclaimed, and, when their note was advised, they craved a diligence. Lady Gordon objected that their reclaiming note had no special prayer to that effect, and that as the Lord Ordinary's interlocutor refusing the diligence had not been reclaimed against it was final.