Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.

Petition of Mrs Mary Hamilton, for Recording the Tailyie of Belhaven

Date: 11 March 1777

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James, Lord Belhaven, executed a tailyie of his estate of Belhaven, and settled it, failing heirs whatsoever of his body, upon Mrs Mary Hamilton, wife of William Nisbet of Dirleton, and the heirs whatsoever of her body; whom failing, &c.

He excluded husbands of the heirs-female from uplifting the rents, or the administration of the estate, jure mariti, and declared that the rents were not affectable by the husbands' debts or deeds, and that the heirs-female of themselves alone should have power, without consent of their husbands, to serve themselves to the estate, to uplift the rents, appoint factors, set tacks, grant charters, provide their husbands in liferents, and their younger children in provisions, to pursue and defend in all actions, and to do every thing relative to said estate, as freely as if their husbands' consent was adhibited.

It contained also a clause appointing it to be recorded in the register of tailyies, and authorising any of the heirs of entail to apply for that purpose.

All these clauses notwithstanding, the Lords refused to record the tailyie, upon a petition in name of Mrs Mary Hamilton alone, without concurrence of her husband. They considered her as still sub cura of the husband, and that without him she had no persona; at least for recording the tailyie, for which no special power was granted. They thought it competent to authorise her by a tutor ad litem; but, this not being sought, they refused the petition.