BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Mrs Elizabeth Scot, Relict of John Lockhart of Lee, v James Lockhart of Lee. [1709] Mor 7267 (24 December 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor1707267-088.html Cite as:
[1709] Mor 7267
Conventional Irritancy in Bargains, Contracts, and Entails, if purgeable. - Irritancy relative to legatum liberationis, when purgeable.
Mrs Elizabeth Scot, Relict of John Lockhart of Lee, v. James Lockhart of Lee
Date: 24 December 1709 Case No. No 88.
A lady having restricted her liferent annuity, the ease thereof was found affectable for a provision to the relict of a former heir, as long as the lady who restricted did not claim the benefit of her full annuity; although the irritancies in the restriction had been incurred.
Click here to view a pdf copy of this documet : PDF Copy
The deceased Cromwell Lockhart of Lee disponed his estate, in the form of entail, to Richard Lockhart, his immediate younger brother, and his other heirs substitute, with several clauses irritant, and provisions; particularly, that it should not be in the power of any of the said heirs to provide their Ladies in jointures exceeding a third of the free rent of the estate for the time, and that in full satisfaction of all right of terce. Upon the foot of this tailzie, John Lockhart, who succeeded to Richard, provided his Lady in an yearly annuity of 2000 merks; who, after his decease, pursued James Lockhart of Lee, her husband's heir of tailzie, for payment of the said provision, and an interim aliment.
Alleged for the defender; The rent of his estate was exhausted by annualrents of debts, and Ladies' liferents, prior to the pursuer's; particularly with 5500 merks of annuity in favours of Martha Lockhart, relict of the said Cromwell Lockhart, now Lady Stevenson.
Replied for the pursuer; The Lady Stevenson had restricted her annuity to 4000 merks for the weal and standing of the family of Lee, which must be profitable to the pursuer, who is a lady and mother in the family.
Duplied for the defender; The restriction was made with several strict clauses irritant, which have been incurred; so that the estate is liable to the burden of the Lady Stevenson's full liferent, when she pleases to take herself to it.
Triplied for the pursuer; Although the Lady Stevenson might recur to her full liferent, yet she has not done it; and so long as she does not exercise that faculty competent to her, the case of her jointure continues a subject affectable for the pursuer's provision and aliment.
Quadruplied for the defender; It is all a matter in this case, whether the Lady Stevenson be actually insisting for the whole 5500 merks or not; seeing she may do it, and illud est debitum, quod exceptione perpetua summoveri non potest.
The Lords found, that the Lady Stevenson's jointure is only to be reckoned at 4000 merks yearly, ay and while she recur to the irritancies in that restriction.
