Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Andersone v. Andersones, her Step-Sisters
1676.
July.
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James Andersone, a merchant in Edinburgh, provides, in his first contract of marriage, a tenement of land he had, to the children of that marriage; he has only one daughter by this marriage; her he bestows in marriage to a mason, and gives him 7000 or 8000 merks of tocher, but takes a renunciation from him and her, she being past 21 years of her age, as to the tenement provided to the bairns of the marriage by her mother's contract-matrimonial, and a full discharge of her right thereto; and then he marries a second wife, by which bed he had two daughters; he dies without disponing that tenement to any. The daughter of the first marriage claims it as being in fee of it, at least pretends to be an heir-portioner as to a third part of it. The two other oppone her renunciation. She answers, she did only that in favours of her father, to give him a power to do with it what he pleased, and not in favours of them, who were not then in being, and he not having used it, her right convalesced, recurred, and accresced. The case seemed so dubious, and the conception of the renunciation so scrimp and narrow, that the daughters of the second marriage were, by their lawyers, advised to give the first somewhat for a composition.
Vide M'Keinzie's Observes on the act 1621, p. 75 et seq. See Codex Fabrianus ad Titulum de Pactis Conventis, tam super dote, &c. definit. 10 et 12, pag. 562.
See the learned Franciscus Corvanus, Commentariorum juris Civilis libro 5, cap. 5, where he proves that pactions renouncing their future paternal inheritance are reprobated in law, even though they be confirmed by an oath, which the canon law maintains, the iniquity whereof he there demonstrates; see the Baron D'Isola's Buckler of State and Justice, where he argues the validity of the Queen of France's renunciation to all succession, paternal, maternal, fraternal, sovereignal, against the French lawyers, Aubrey and others, who impugn it.
