Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Jean Watt
v.
Robert Russel and Others

Date: 25 November 1664

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Jean Watt, being infeft in the lands of Bogehead and Whiteside, conform to her contract of marriage with umquhile Thomas Hamiltoun, her husband, did obtain a decreet, before the Lords, against the tenants; and thereupon having charged Robert Russell, one of the tenants, [he] suspends upon this reason, That the said Robert Russell, being a creditor to the said umquhile Thomas Hamiltoun, and having apprised from the said Thomas Hamiltoun his son, as lawfully charged to enter heir to him, the said lands of Bogehead and Whiteside, and all rights that he can pretend thereto; upon which apprising the said Robert stands publicly infeft; and that the benefit of any provision, conceived in the contract of marriage, in favours of Thomas Hamilton, the heir of the marriage, now his debtor, must belong to him, having apprised the same: so that the charger, Jean Watt, being thereby restricted to 600 merks, the superplus being provided to the child of the marriage; the letters must be found orderly proceeded for the 600 merks, and suspended for the superplus. To which it was answered, That the clause of provision in the foresaid contract is only in case there be children alive of the marriage; quo casu, the said Jean is made liable to entertain them, during her viduity, upon her jointure, they not being otherwise provided; and, in case she should marry a second husband, the said children being alive, then and in that case her conjunct infeftment was to be restricted to 600 merks during the said second marriage, and the superplus to be for alimenting the children of the first marriage: which being alimentary, and any of the children alive, can never be taken from them by any of the fathers, intromitters; it being clear, by the contract, that not only the whole lands of Bogehead and Whiteside are secured to the children, but also, that any restriction of her liferent right is only in favours of her children, excepting and reserving their aliment; and which cannot be taken from them by any creditors of the father. The Lords, in respect the charger, Jean Watt, was married to a second husband, found that she should restrict her liferent to 600 merks yearly, unless compearance were made for Thomas Hamilton, only child of the marriage, and an allegeance made for his right as to the superplus; and thereafter found the letters orderly proceeded for the 600 merks, and suspended them [quoad ultra,]

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