Scottish Court of Session Decisions

Subject_1 MARRIAGE, AVAIL OF.

Gibson
v.
Ramsay

Date: 14 June 1673
Case No. No 34.

Marriage of an heretrix found not to reach the whole value of the foe, but modified as in the case of an heirmale.

Click here to view a pdf copy of this documet : PDF Copy

Umquhile John Ramsay having only two daughters, one of the first, and another of the second marriage, Mr George Gibson married the daughter of the first marriage, and John Ramsay provided his whole estate to the daughter of the second marriage, but drew up a bond in favour of Mr George, of 6000 merks, which he did not deliver, but cancelled it a little before his death; whereupon Mr George obtained a gift of the ward and marriage of Janet Ramsay, daughter of the second marriage, and pursued declarator for the avail thereof, and instructed the estate to be twelve chalders of victual, and L. 150 of silver rent, and 12.000 merks of money, burdened with a liferent of nine chalders of victual, and 300 merks of annualrent, and thereupon craved that the whole free estate might be declared to be the avail of the marriage, in respect the defender is a woman, and so her marriage is the worth of her estate; that he was most favourable, his wife being heir-portioner, and excluded, and the defunct being induced by his wife to cancel a bond of 6000 merks in his favour, upon death-bed, in favour of her daughter. It was answered, That law and practique had stated the avail of a marriage alike, whether the party was man or woman, and otherwise the marriage of an heretrix would not be a casualty but an extinction of the fee, which were so hard, that nothing but a positive statute, or uncontroverted consuetude could infer it.

The Lords, considering the favourableness of the case upon the pursuer's part, modified the avail of the marriage to 8,500 merks.

Fol. Dic. v. 1. p. 570. Stair, v. 2. p. 188.