Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Captain Dalziel and His Spouse
v.
Scotstarbet, &c

Date: 6 July 1688

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Mr John Ellis, younger, advocate, having made a bond of tailyie of his personal estate to heirs-male; which failing, to the daughters, with an express provision, That it should not be in the power of any of the heirs of tailyie to uplift the sums, without consent of some persons nominated, except that the daughters may make over their shares in their contract of marriage, with consent of other persons than the former:—Captain Dalziel, who married one of the daughters without the friends' consent, pursued a declarator for obliging these friends to consent, or getting the money, by the Lords' authority, without their consent. Answered for the friends, The succession to the sums, by the pursuer's contract, is not according to the father's destination, but goes to the Captain and heirs, failing children of his wife's body. 2. By a general provision, after all, the sums are not upliftable without consent of the subsequent immediate heirs of tailyie. 3. The father having given the friends a power to consent to the daughters' marriage, and consequently to dissent, that must have the effect of an irritancy, in case of marriage without their consent; and, if their consent had been antecedently required, they had reason to refuse it, seeing the Captain was not able to make a suitable provision on his part, and the terms of the father's destination were altered. Replied, The provision hath no irritancy, or obligement quoad the marriage; and many persons make as unequal matches. 2. The general exceptions being posterior to that, except in their contract of marriage, &c. does not derogate to the special; for it is not probable the father would have made his daughters' portions depend on the subsequent heir's consent. 3. The particular exception must derogate from the destination as well as other things; it not being usual that matches could be had, where tochers are under so strict destinations; besides, the daughter was in fee, and might dispose for such an onerous cause as marriage. The Lords found, that the contract ought not to alter the father's destination, failing bairns of his daughter's body; and the defenders craved the pursuers might find caution in that event.

Page 52, No. 224.