Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Elizabeth Walker and her Husband
v.
Andrew Walker, Bailie of Anstruther

Date: 21 December 1676

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In a suspension of a decreet of transferring, against Andrew Walker, as heir to his father, who was obliged, by contract of marriage, to pay the sum of 2000 merks to the said Elizabeth, and some other children of a second marriage, upon this reason,—That the charger, and the rest of the children, were confirmed executors to their father, and an inventory given up by their own mother, exceeding the provisions contained in the contract; so that, intus habent, and the debt being moveable, they ought to relieve the heir, if he should pay the same.

It was answered, That the pursuer, and the rest of the children of that marriage, being but very young, and some of them infants, the mother's confirmation, who was not their tutor, nor had any authority, could never prejudge them; unless they had homologated the same, by receiving by count and payment from their mother of her intromission: whereas they were so far from taking that course, that they did pursue a transferring against the suspender, and obtained decreet so soon as they came to years.

The Lords did find the letters orderly proceeded, notwithstanding of the reason of suspension; and that the mother, not being tutrix, her deed could not prejudge the infants; unless she had satisfied them out of her intromission, or that they had homologated her confirmation: but found it just that the executors should purge all intromission, and assign the suspender, as heir to his father, to pursue his intromitters with his goods, for his relief.

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