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Scottish Court of Session Decisions >>
David Allan v Doctor Gordon and Straiton. [1694] 4 Brn 130 (23 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040130-0296.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
David Allan v. Doctor Gordon and Straiton
Date: 23 January 1694
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The generality of the Lords thought, that, if the competition had been only betwixt the children of the first and the second marriage, the provision of the tenement to the heirs of the first marriage in the contract would have preferred that heir; yet not so, but the father, being still fiar, might give a rational and moderate provision out of it to a second wife, or her children, in a second contract. But here it came to be the case of a singular successor, who had bona fide acquired right from the heir of the second marriage; and the heir of the first marriage had renounced, but was not served heir.
The Lords preferred Allan, who was the singular successor, deriving right from the heir of the second marriage: though some alleged that he was in mala fide to purchase; seeing, by the contract of marriage, he saw the tenement provided to the heir of the first marriage; and his ignorantia juris could not excuse him. Some minded the Lords of the famous case of the three sisters, recorded by Craig, tit. De Successione Fœmin, where the Lords divided the tenement amongst the three daughters of three several marriages, to each of whom the father had provided it in their mother's contract-matrimonial; and the like was moved here, that the tenement might be divided between the heirs of the two marriages. But it was decided ut supra.
