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Scottish Court of Session Decisions >>
Gartashore v Brand. [1683] Mor 987 (23 March 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Mor0300987-102.html Cite as:
[1683] Mor 987
Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XIII.
The Onerosity of Provisions made in Postnuptial Contracts.
Gartashore v. Brand
Date: 23 March 1683 Case No. No 102.
A provision to a wife, whether by antenuptial or postnuptial contract, in-effectual, so far as exorbitant. See Duncan against Sloss, No 101. p. 987.
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Alexander Gartshore, late bailie in Edinburgh, and Elizabeth Brand, relict of Gavin Weir, competing:——The Lords, on Castlehill and Pitmedden's report, preferred the relict to Gartshore, in respect her judicial renunciation produced, bears not to be upon oath, and notwithstanding of the extract of the instrument produced, or that it is offered to be proven by the oaths of bailie Douglas and the clerk, that she did swear; which probation the Lords refused: But found her liferent provision, compared with her husband's estate and debt, exorbitant, being the annualrent of L. 10,000; and therefore referred to the President and these two Lords, to endeavour to settle the parties, and to modify and abate her annuity: For they thought, a trading merchant that was contracting debts, ought not to lay 2000 merks of his own means, to every 1000 merks he got with his wife in tocher, to the prejudice of his creditors, as was done here. And accordingly they having met, with the rest of the Lords' consent, declared they would modify her jointure, unless she would accept of the sum of 6000 merks in full satisfaction; which she accepting, then they ordained her to assign her jointure and contract matrimonial, to James Weir, her child's tutor, for payment to himself primo loco of the annualrent of the said 6000 merks which he was to advance to her, and the rest of it among and for the behoof of the creditors of the pupil, according to their diligences; and so they preferred the tutor to Gartshore, who offered to pay the widow the 6000 merks modified, upon her assigning him to her right.
