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Scottish Court of Session Decisions >>
Marion and Janet Johnstons v Gavin Johnston of Elshieshiels. [1709] Mor 12019 (3 November 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor2812019-084.html Cite as:
[1709] Mor 12019
Marion and Janet Johnstons v. Gavin Johnston of Elshieshiels
Date: 3 November 1709 Case No. No 84.
Found in conformity with the above.
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The deceased Elshieshiels, in his first contract of marriage, provides, in case there be no heirs male of that bed, and two daughters, they shall have 8000 merks payable at their age of sixteen, and till then, to be educated and alimented according to their quality and degree. It happened there were only two daughters of that marriage, but in a second, he had a son; and he being deceased, his daughters pursue their brother for an aliment, till they shall arrive at the foresaid age of sixteen, at which time their portions commence to beat annualrent; and the Lords having allowed the pursuers; a probation of the yearly rent and value of the estate, and the defender to prove the debts and incumbrances affecting the same, upon advising the cause this day, found the estate proved to be worth 4000 merks by year, and the term circumduced as to proving the debts; whereon the Lords proceeded to modify the aliment, and found the least they could give them was the annualrent of their portion, deducting always the retention; but when they considered at what time this should begin, they found the time of the father's decease was not proved; and though the pursuers contended, That they needed not, for they had libelled that he died in March 1702; and that, some months thereafter, their stepmother had thrust them out of the house, and in all the debate this was never denied, but taken as granted; yet the Lords thought this position a vulgar error, and that sundry decreets had been found null for want of this probation, seeing actore non probante, the reus comes of course to be absolved; yet the Lords allowed the pursuers still a diligence to prove the time of their father's death, and of their expulsion; for so long as they staid in familia after his decease, they could crave no aliment, and declared they would summarily advise it, that it might appear quo tempore their aliment shall begin.
Fol. Dic. v. 2. p. 182. Fountainhall, v. 2. p. 522.
