Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Elizabeth Grant, Spouse to James Kennedy, Periwig-maker in Edinburgh,
v.
Patrick Grant of Dunlugas

Date: 9 July 1712

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Robert Grant of Dunlugas, having, in anno 1687, disponed his estate to Patrick Grant, his eldest son in his contract of marriage, with the burden of 6000 merks to Andrew Grant his younger son, and Elizabeth Grant, his daughter, for their provisions; to be divided among them, and paid at such terms as their father should appoint: In implement of this obligation, Robert Grant, in November, 1693, assigned to Andrew and Elizabeth Grants, all that was addebted to him by John Campbell of Friertoun, his father in law; and further, he, and Patrick Grant, his eldest son, obliged them to pay to Elizabeth, 1000 merks; declaring the bond and assignation to be in full satisfaction to Andrew and Elizabeth, of all they could claim through their father's decease, or their eldest brother's contract of marriage. Elizabeth Grant pursued Patrick, her eldest brother's son, as representing his father and grandfather, for payment of the 1000 merks, and the equal half of the other 5000 merks due to her by the above mentioned settlement.

Alleged for the defender,—That Robert Grant, the father, had exerced his faculty of division by giving the pursuer 1000 merks in full satisfaction; which effectually excludes her from all further claim.

The Lords found, that there is jus quæsitum to the pursuer by the contract of marriage; and that the means assigned by the second bond of provision proving ineffectual, she might repudiate the same, and thereby hath an interest to claim an equal share of the provisions to the children in her brother's contract of marriage. But the Lords thought, that if she did refuse to accept of the father's second deed, she could not claim the additional 1000 merks as a præcipuum. The Lords reasoned thus;—the pursuer's right to a share of the 6000 merks was no ways extinguished: because, though the father, by his power of division, might give more or less of the 6000 merks to her brother and her; he was still obliged to give the whole betwixt them. If the father had made no division, the son and daughter would have had right to the 6000 merks equally, and by just proportions: which jus quæsitum could never be taken from them, but with their own consent, except upon payment of the whole 6000 merks to one or other, or both.

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