Mrs Florence M'Leod v. Mr John Nicolson — Petition, 13 Jul 1768

T H E P E T I T I O N O F Mrs Florence Macleod, spouse to Roderick Macdo­ nald tacksman of Sandaig, and the said Roderick Macdonald, for his interest, Humbly s h e w e t h, T HAT by contract of marriage with Donald Nicolson,her late husband, the petitioner Florence Macleod had right to 700 merks Scots money, provided to her in lieu of her share of moveables; a half of the household furniture, with the goats and sh eep, which belonged to him at the time of his death; and the annualrent of 2000 merks Scots money, whereof the principal was provided to the children of the marriage. Some time after the death of Donald Nicolson, and before her marriage with the other petitioner, she brought an action against Mr John Nicolson minister at Portree, and the other in- tromitters with his effects, for implement of these provisions. The cause came before my Lord Coalston as Ordinary. Mr Nicolson admitted his intromission, and consequently his be- ing obliged to satisfy the petitioner's just claims. It was alledged in his defence, That they were in part extinguished, by her in- tromisio n with an annuity of 150 merks Scots money, settled upon her by her first husband Mr Macqueen of Tot; which, it was said, became the property of Mr Nicolson’s heirs, by her conveyance thereof to Mr Nicolson, in the above-mentioned marriage-contract. In the answer to this defence, it was pled for the petitioner, first, That her conveyance of the annuity to Mr Nicolson made no mention of his heirs; and was therefore to be held as perso- nal to him. 2dly, That if this did not seem clear from its con­ ception, she was ready to prove, that it was the intention of the parties to the communing which preceded the writing of the contract, that the said annuity should return to her in the event that has happened. 3dly, That supposing the annuity in question to belong to Donald Nicolson’s heirs, the defender ha­ ving established no active title to his succession, had no right to make the pursuer account for her intromissions with it. After a litigation of some length, and the pronouncing of the interlocutors stated in former papers, his Lordship took the cause to report, and ordered the parties to lodge memorials on these points. Upon advising these memorials, your Lordships pronounced this interlocutor. " Upon report of Lord Coalston, the Lords find, That the annuity in question returns to the pursuer, and does not descend to her deceased husband’s heirs; and remit to the Lord Ordinary to proceed accordingly.” Against this interlocutor a reclaiming petition was preferred for Mr Nicolson; upon advising of which, with answers for the petitioner, your Lordships thought proper to alter the said inter­ locutor, and pronounce the following. " The Lords having advised this petition, with the answers thereto, find, That the assignation in the contract of marriage between the pursuer and the deceased Donald Nicolson, did carry, not only the annuity which fell due during the marriage, but also the an- nuities nuities which were to fall due thereafter, during the life of the pursuer; and remit to the Lord Ordinary to proceed ac­ cordingly.” The countenance which the petitioner’s plea has received from the first of these interlocutors, is so high an authority for believing it to be well founded, that she hopes it will appear a sufficient apology for the trouble she now gives your Lordships, in craving a review of the last stated interlocutor. Before entering upon those arguments from which she is in­ duced to believe that her application may be attended with suc- cess, she hopes it will not appear improper to point out shortly to your Lordships the extreme hardship of the situation to which an adherence to this judgement will reduce her. The petitioner, the daughter of a respectable family, received an education, and was brought up in a way of life, suitable to the rank which it maintains in that part of the country. The annuity of 1 50 merks, settled on her by her first hus- band, was, at best, but a very moderate fund of aliment. Such moveables as she acquired by his death, upon her mar­ riage with Donald Nicolson, became his property; and now make a part of his childrens estate. If this interlocutor shall be adhered to, not only will she be disappointed of such an addition to this fund of subsistence, as she understood to have been provided for her by her late hus- band, but even the little aliment which she was before intitled to, must now be diminished. And while her husband’s children, by another marriage, en­ joy her former annuity of 150 merks, she must lie under the hard necessity of being a burden on her own, for the sum of 1 0 0. And this unfortunate change of circumstances will come upon her, not in the vigour of her youth, when we may be supposed with greater ease to encounter difficulties; but after the knowledge of better days, and when she is approaching to that period period of life in which we are least able to provide for our- selves. Nor is it her alone whom it affects; she involves in her mis- fortune her present husband, and his numerous family; with whom she became connected in full confidence of bringing with her a fund of subsistence, far beyond that to which this defend­ er would now restrict her. It has been uniformly maintained by the petitioner, That in the communings which preceded her contract with Donald Nicol- son, it was agreed, he should only acquire right to the annuity during the subsistence of their marriage. Of this fact she offer- ed a proof by the most unexceptionable witnesses. Your Lordships were indeed of opinion, that this could not be granted, in confidence with the strict rules of our law. It is however believed, that the defender’s cause will hardly appear the more favourable for his sheltering himself under such a plea, against a compliance with the intention of his late bro­ ther: especially when it is considered that he was well ac­ quainted with this intention; of which his conduct: preceding this plea, affords satisfactory evidence. For several years after Donald Nicolson’s death, the defender allowed her to uplift this annuity, without insinuating either to her, or her friends, that he considered it to be the property of his brother’s heir, or meant to make her account for it. Nay, though during this time he, as acting for his brother’s chil­ dren, paid her 100 merks, as a year’s annuity due upon her contract of marriage with his brother, she did not, even on that occasion, pretend to challenge her intromission with the other or to claim it as their property. When these circumstances are taken together, they render the hardship of the defence which this gentleman is now advi- sed to insist upon, and the equity of her plea, equally apparent to your Lordships. And though she knows none of these gives her a right to ex- pect that your Lordships will depart from the established rules of of law; yet she hopes they will, at least, procure her a favour­ able ear to her arguments, when she endeavours to shew, that the plea which she maintains does not even impinge upon these rules. The clause in the contract of marriage founded on by the defender is of the following tenor. “ And, on the other part, the said Florence Macleod, by these presents, assigns and dis- pones, to and in favour of the said Donald Nicolson, the interest of 3000 merks money, provided to her in liferent by the de- ceased Archibald Macqueen of Tott, bearing date the day of years, with the contract itself, and all that has followed or may follow thereupon; surrogating and sub- stituting the said Donald Nicolson in her full right and place of the same; which assignation she binds and obliges herself to warrant from any fact or deed, done by her or foresaids prejudicial hereto allenarly.” If the effect of this conveyance was to be judged of from the natural force and import of its words, the heirs of Mr Nicol­ son, as it makes no mention of them, could claim no benefit • from it. But the defender, from the maxim of law, Quod qui provi- d e t sibi, providet et heredibus suis, maintains, T hat as Mr Ni- colson did thereby acquire the annuity to himself, he of ne- cessity acquired it to his heirs also. For (says the defender) if a subject is conveyed from A to B, as the former is there­ by denuded, and the subject vested in the latter, it will, on his death, make a part of his hereditas jacens; and, as such, pass to his heirs, though not mentioned; and failing of them, to the fisk; and never can come back to the conveyor, unless a return has been specially stipulated by him. Though this argument has, on the first view, a very plau- sible appearance, there is an obvious fallacy in applying the conclusion to this case. It proceeds on a petitio pricipii, with respect to a property of which the conveyor absolutely de- ’ ' nudes nudes himself, and which he transfers to another, it is indeed ju st. But as it is in this case contended, that from the per­ sonal conception of the conveyance, and the presumed inten­ tion of the parties, the conveyance stands limited to the life of Mr Nicolson; whether it does so or not, must necessarily be determined, before the above conclusion can be drawn. Till this is done, which it can only be from the will and intention of parties, there is no room for inquiring, whether the maxim, Qui providet sibi, providet et heredibus suis, can be applied or not? And indeed if there was room for this in­ quiry, the petitioner contends, that it would land, like the o- ther, in a questio voluntatis. She has been taught to think, that there is hardly any rule of law so general as to apply to all cases without exception; and thinks she is further intitled, from a variety of authori­ ties, to conclude, that if there are any such, at least this is not of the number. A very considerable part of our private rights arises from pactions; the rules with respect to these, are generally drawn from the Roman law. By it, rights arisin g from personal pactions did not descend to heirs. Thus it is laid down, Personale pactum ad alium non pertinere quem ad modum, nec ad heredem,” l. 25. § 1. D. lib. 2. tit. 14. And yet, though the consequences of the inference were so strong, a paction was inferred to be personal, not only from the heirs of the person favoured being expressly excluded, but also from other circumstances, if sufficient to produce a conviction, that such exclusion was the intention of parties. This rule is laid down by Ulpian, l. 7. § 8. lib. 2. tit. 14. D. in these words: Utrum autem in rem an in perfonam pactum fac­ tum est, non minus ex verbis, quam ex mente con- venientium, testimandum est." So that it appears, where a right was not conceived in favour of heirs, that the Roman law considered it to be a quaestio vln, depending upon the circumstances of the case, whether it would descend to them or not. Our Our great lawyer Lord Stair seems to have considered the principle of our law to be the same. This appears from lib. 3. tit. 5. § 5. where, talking of the. privileges of heirs, he u- ses these words. “ As to the benefit of heirs, they have right not only to obligements conceived in favour of the defunct and his heirs, but though there be no mention o f heirs, unless by the nature of the obligement there be a specialty, appropriating the s ame to the pers on of the defunct only, as in commissions, trusts,” & c. From this passage it appears, that Lord Stair, in conformity to the Roman law, where a right was acquired without their being mentioned, understood it to be a quaestio voluntatis, Whether the heirs were to have be­ nefit from it or not? and thought that question determinable from the nature of the obligement; and, doubtless, for the same reason, from all other circumstances which tended to shew the mind of the parties. The decisions of this court al- so strongly support the opinion established by these authori­ ties. Thus it has been often decided, that tacks and rentals, though these rights are always granted for onerous causes, and often purchased by the payment of a price, do not de- scend to heirs, unless they be specially mentioned in the deed by which they are granted. But what is still more applicable to the present question, in the case Lyon contra Stewart, Durie, March 20. 1633. a wi­ dow, giving her son a right to enjoy her liferent-lands; and his relict continuing to possess them after his death, by the tolerance of his heir; in an action at the old lady's instance. it was found, That her husband’s heir had no right to possess them, because she had given that benefit only personally to her s on; and that she was not obliged, by the tenor foresaid, after her son’s decease, to any other his heirs or relict, but at her own pleasure. What makes this decision particularly remarkable is, that the son had granted his mother a bond, expressly in conside- ration of her having thus quitted her jointure-lands, which his heirs were obliged to pay. It is this circumstance which makes makes the learned collector add a note in these words. Here I conceive not how the heirs can be obliged to her, and she not to them.” The defender has endeavoured to turn this note against the petitioner’s argument. But your Lordships will observe, that as the circumstance of her get­ ting a bond for quitting her liferent-right, which her son’s heirs were obliged to pay, afforded a strong presumption, that they were also to be benefited by this deed; his Lordship might, on that account, disapprove of the decision, without doubting the general principle which it is now brought in support of: and surely the over-ruling the plea of the heirs in so favourable a case, is the strongest proof possible, that the court at that time were far from holding, that a right went of course to heirs, though not expressed. It is also material to observe, that though several of the questions which have arisen between a remoter substitute in tailzies and the heirs of a prior substitute, who was only himself called, without mention of his heirs, have been deci­ ded in their favour; these decisions have in general pro­ ceeded, not upon the maxim pled by the defender, but, in consistency with the principles above laid down, on a pre- sumption arising from the circumstances of the case, that the heirs were meant to be called, though not expressed. Thus, in the case of Sutherland contra Murray, collected in the Dictionary, voce Succession, art. Implied Substitution, vol. 2. p. 400. Robert Murray had disponed his estate of Pulrossie " to and in favour of John and George Murrays his brother’s sons, and the heirs-male to be procreated of their bodies; which failing, to Sutherland of Clyne,” & c.; and appointed a division of the estate between the two brothers into unequal parts; though, upon the death of George without heirs of his body, the question occurred between his brother John, his next heir, and Sutherland of Clyne, Which of them was to suc- ceed him in his part of the lands? and was decided in favour of John. But it does not appear that the decision at all pro­ ceeded ceeded upon the general maxim insisted on by this defender, though it applied with superior force to that case; but it went, on the contrary, upon the presumed intention of the tailzier, inferred from this, among other circumstances, that as he represented a family of some antiquity, it could never be his intention, to let his estate divide between his nephew and a remote heir-female. These decisions therefore, instead of affording that support to his plea which the defender has endeavoured to derive from them, do, in the petitioner’s apprehension, strongly concur with the authorities and precedents which have been now ad­ duced, in estab lishing this general principle, That as the ma­ xim, Qui providet s ibi, providet heredibus, rests on a legal preemption of its being the intention of parties, that a sub- ject conveyed from the one to the other, should pass to his heirs; where the circumstances of a case produce a convic­ tion of a contrary intention, it will not apply; because the presumption arisin g from them will defeat that legal pre­ emption, agreeably to the rule of common law, and indeed of common reason, That of two presumptions the strongest is to be preferred. From this principle, it follows, that supposing the above ma­ xim in other respects applicable to this case, it still remains to be inquired, whether the legal presumption on which it rests be not excluded by the circumstances of the case? If your Lord- ships are satisfied of that principle, it is little material to repeat the observation, that as the petitioner contends the conveyance to Mr Nicolson to have been limited to his lifetime, by its personal conception, and the other circumstances of the case, that till the contrary of this be shown, there can be no room for the other question; since it now appears, that whether the one or the other of these is made the question, it must e- qually lead to an inquiry into the will and intention of the parties.___ The The petitioner now therefore, holding this cafe to be a quae- stio v o l untatis, will proceed to point out the various circum- ces of this case which afford presumptions for its being the intention of parties, that the conveyance of this annuity should be limited by the death of Donald Nicolson the acquirer. And, in the first place, several presumptions arise from the nature of the subject conveyed. A land-estate, or sum of money, may be apprehend­ ed by one single act, and as the acquirer, from the moment the conveyance to him is legally perfected, acquires the right of thus, s imul et s emel, occupying the whole thereof; so when he dies, he transmits this right of course to his heirs, though not expressed. For it would be too violent a presumption to infer, from circumstances, that the parties would allow the right of totally occupying such an individual subject, to pass from the one to the other, without limiting his power over it, by a provision for its return to the con­ veyor, if that had been intended. An annuity, on the contrary, in its nature implies a tract of future time; and consists not of one individual subject, over which the acquirer thus at once obtains a total and im­ mediate power; but of several different individuals, over which he is successively to acquire that power, from year to year as they become due. Hence therefore, where a right to such an annuity has been conveyed from one person to another, though it is ex­ tremely clear, that such terms thereof as might be due at the death of the acquirer, transmit to his heirs though not expressed, because the right of exacting them was vested in him; it becomes a matter of great difficulty to conclude that they will also have right to this annuity for future terms; for the sums which will then become due, never were in the property or under the power of their predecessor; and, as they themselves are not mentioned in the conveyance, the presumption preemption is, that the parties to the conveyance never meant to give them any such power. To apply this observation to the present cafe, the petition­ er has never disputed, that such sums as fell due upon her right of annuity, during his life, transmit to Donald Nicol- son’s heirs; because the right thereof was vested in him. But she contends, that as the annuities which have since fal­ len due, never vested in him, so they never could be trans- mitted by him. And she submits it to your Lordships, whe­ ther the personal conception of the conveyance, which makes no mention of his heirs, does not afford a strong presump- tion or rather a substantial proof, that it was never meant they should have any right to the exaction of this annuity af­ ter his death. But further, not only is this subject here conveyed an an­ nuity, but it is one of the most personal nature. It was settled upon the petitioner by her first husband, for the purpose of supporting her so long as she survived him; and did not exceed the bounds of a very moderate aliment. While her marriage with Mr Nicolson subsisted, it was ex­ tremely rational and proper, that he should enjoy this an- nuity, as a fund for enabling him to afford her that aliment for which it was bestowed upon herself. But after his death, it was not reasonable that it should pass to his heir; she was not to live with him, who is the son of her late husband by a former marriage, nor was he bound to aliment her. The only provision made by M r Nicolson for that purpose, was laid upon her own children. From this circumstance, the petitioner contends, that as her conveyance of this annuity was thus attended with a Spe­ cialty, appropriating the same to the person of the defunct on­ ly, which does not apply to his heir, viz. his being to ali­ ment her during the subsi stence o f the marriage; that, in the very words of my Lord Stair’s opinion, as above cited, the heirs not being expressed therein, can take no benefit from it. And And indeed, when it is considered, that though marriages are every day entered into with widows who have no other fortune than such an annuity; and that this, if it be one, is perhaps the only instance that ever occurred of such an an­ nuity being given to the husband and his heirs; this must afford a very strong presumption that no such benefit was ever meant for them; and a presumption which, as it is founded on substantial reason, seems also agreeable to legal ideas: Nam s emper praesumitur s ecundum id quod plerumque sit. Where an annuity is expressly settled under the name of an aliment, either by a husband or stranger, the law holds it to be of so personal a nature, that it cannot be carried from the annuitant by the diligence of creditors. See Dict. voce Pers onal and Transmisble, vol. 2. p. 76. 77. The petitioner can have little doubt, that the same rule would be applied by your Lordships to an annuity like that in question, which, from its extent, appears evidently to have been bestowed for the purpose of an aliment. And if your Lordships are of opinion, that such an annuity is not attachable by creditors, she apprehends you will also hold, that it is not capable of being conveyed by the voluntary deed of the annuitant: At least that, in dubio, such con­ veyance should not be presumed or inferred beyond what is rational, and agreeable to ordinary practice in the like cases. And if it be the legal character of this annuity, quod haeret ossibus of the petitioner, and that she had no power to give it away; this affords, of all others, the strongest presump- tion in her favour: Nam fieri non praesumitur, quod fa ctum non valet. And even if our law should not be thought to go all the length which has been now supposed, at least it goes far enough to shew the strong personality of such a right; and consequent- ly to afford a very strong presumption against its being intended, that it should for ever pass from the annuitant. 2dly from his knowledge that the parties did not mean that they should be benefited by it. And that he was so far acquaint­ ed with style, as to know that heirs ought to have been na­ med, if the conveyance was meant to carry the subject to them, is evident from the other parts of this contract, a co­ py of which is hereto subjoined; for heirs are uniformly mentioned in every other clause of this deed, by which they are either burdened or favoured. Thus, he not only binds Donald Nicolson, but his heirs, successors, & c, to imple­ ment the provisions made in favour of the petitioner and the children of the marriage: And in the destination of the money provided to the children, he provides it, failing of them, not only to himself, but his heirs and assignees what- soever. This circumstance, as it shews the writer’s know­ ledge that heirs should have been mentioned in this convey­ ance, if intended to be favoured, affords full conviction that he knew the parties to have a contrary intention, and there­ fore designedly omitted the mention of heirs in the clause in question. In opposition to this variety of presumptions, it has been observed on the part of Mr Nicolson, That the insertin g a conveyance of this annuity in the contract was useless, un- less it is supposed to carry it also to his heirs; because he himself, independent thereof, had right to enjoy it during the subsistence of the marriage jure mar it i: and it is even said, that if the contract has not that effect, the petitioner has thereby cheated her husband, by pretending to give him something, when in fact she gave him nothing. It is indeed true, that the jus mariti carried the use of this annuity to Mr Nicolson during the marriage: but besides that the writer of the contract who is a country surgeon, and the parties to it, might not be lawyers enough to know that it had that effect; nei ther was it improper to insert some clause in the contract, which might show, that she had, in in lieu of a tocher, brought him the use of this annuity du­ ring the marriage; which the other circumstances of this case afford the strongest evidence must have been all that was meant by the insertion of this conveyance. And even if it could be supposed, that the parties and writer understood so much of the law as to know and believe, that the husband’s jus mariti would extend to this annuity; yet they might na­ turally and justly consider it as necessary for him to have a written conveyance from her during the marriage, in order to enable him the more easi ly to compel the debtor to pay, and to grant receipts or discharges upon payment without the concurrence of his wife. Taking the matter in either of these views, it can surely with no propriety be said, that she has cheated her husband when he has got all that ever was intended for him. On the contrary, since that phrase is to be made use of, she will take the liberty of saying, that if this defender shall succeed in the plea he now maintains, she has been cheated with a witness. For instead of receiving from Mr Nicolson’s represen- tatives the moderate addition o f 1 oo rnerks to her former ali­ ment, which she is sure was intended for her, she is now to be stripped even of that aliment itself; and the little she is to receive in lieu of it is to be a burden on her own children. Having thus endeavoured to satisfy your Lordships, that this question ought to be decided from the presumed inten­ tion of parties, and to establish, by the various preemptions arising from the circumstances of the case, that the convey­ ance of this annuity was never meant by the parties to carry it to the heirs of M r Nicolson; though she is sorry her anxiety to maintain that part of her plea has made this paper alrea­ dy swell to a much greater bulk than could have been wish- ed, she must yet, before concluding it, give your Lordships the trouble of considering, how far, supposin g this annuity did pass to Mr Nicolson’s heirs, this defender has a right to plead plead her intromisi o n with it, in compensation of her claims. The defender has estab lished in his person no act ive title to his brother’s succession: it is therefore evident, that he could have no right to bring an action against Mr Macqueen's heirs for payment of this annuity, or against the petitioner for repeating what she has drawn from them. She appre­ hends, that no person can sound a plea of compensation, any more than they can sue action against another, for sums which they have not a right to exac t and a power to dis- charge. It is extremely evident, that the defender, till he estab lishes an active title in his person, can do neither. Sensib le of the force of this argument, the defender has al- ledged, that he had such a right, as pro-tutor to the son of Donald Nicolson. But, in the first place, Even if he was his real tutor, he could have no such right, unless his pupil had made up titles to his father’s succession, which it is not so much as alledged that he has done. And, 2d ly, Even if that was the case, it does not appear how a pro-tutor can have any right to exact or discharge sums belonging to the pupil. To do either of these, some legal title is required; but a pro-tutor has none. He is a person who, without a legal title, intrudes himself into the management of a pupil’s affairs. I f he does this mala fide, he incurs certain penalties, from which if he does it bona fide he is exempted. But in neither of these cases has he any of the characters of a legal tutor. The petitioner therefore submits it to your Lordships, that as the defender has, in that character, no right to uplift or discharge any sums which might belong to his brother’s children making up proper titles; so he can have no right to plead compensation upon the like sums, against such as may be possessed of them, and consequently that he has no right in this action to make the petitioner account to him for her intromissions with the annuity in question, supposing it to be­ long to the heirs of Mr Nicolson, the contrary of which, she humbly hopes, will appear to your Lordships. May May it therefore pleas e your Lordships, to alter your last inter­ locutor, and either simply to adhere to your former interlocu­ tor, 28th January 1768, finding, that the annuity in que- stion returns to the petitioner, and does not descend to her deceased husband's heirs; or at leaft to find, that Mr Nicol- s on has no right to make the petitioner account to him for her intromissions w ith s aid annuity. According to ju stice, &c. B. W. M A C LEO D, Contract Contract of marriage, betwixt Mr Donald Nicolson and Mrs Florence Macleod, referred to in the fore- 0 going petition. AT Mugstot, the twenty-fourth day of January, One thou- sand seven hundred and fifty-eight years. It is agreed upon betwixt Donald Nicolson tacksman of Mugstot, and Florence Macleod, widow of the deceased Archibald Mac- queen tacksman of Totte, with advice and consent of John Macleod of R asay, her brother, on the one and other parts, That is to say, Forasmuchas, albeit the said Donald Nicol­ son and Florence Macleod are already married; yet there ha­ ving been no contract hitherto betwixt them, the said Flo­ rence Macleod is not sufficiently secured in any jointure, nor are the children to be procreate of this marriage provided, or a tocher given to the said Donald Nicolson, according as was communed and agreed upon betwixt the said parties be­ fore and at the marriage: In contemplation whereof the said Donald Nicolson binds and obliges himself, his heirs, successors, and executors w hats oever, to provide and secure the said Florence Macleod, his spouse, in liferent, during all the days of her lifetime, in all and whole the interest of two thousand merks Scots, and to the children of that mar­ riage in fee, in equal portions to them all. And further, the said Donald Nicolson binds and obliges himself, and his fores aids, to make up the sum of one thousand merks mo­ ney foresaid, to be divided equally betwixt the children to be procreate of the marriage. But in the event that there shall be no children of the marriage, the said Donald Nicolson binds and obliges himself, and his fores aids, to provide thesaid L 22] said Florence Macleod, his spouse, in the interest of this thousand merks, as well as the interest of the two thousand merks above specified; and to ware and bestow the said sum of 3000 merks money foresaid upon land, or in the hands o f a sufficient responsal person or persons, at the fight and by the advice of the said John Macleod of Rasay; and to take the se- curities of two thousand merks thereof to himself, and the said Florence Macleod his spouse, and the longest liver of them two, in liferent, and to the children to be procreate be­ twixt them, after their decease, as said is; which failing, to the said Donald Nicolson his heirs and assignees whatsoever; and likewise he obliges him and his foresaids to take the security o f the other sum of one thousand merks to himself alone, and « •, • / failing of him by decease, to the children to be procreate of this marriage; which failing, to his heirs and assignees whatso- ever. And further, the said Donald Nicolson obliges himse lf and his foresaids to make payment to the said Florence Mac- cleod, in case she shall survive him, of the interest of the said two thousand merks if there shall be children of this mar- riage, and of the interest of three thousand merks money in case there are no children existing of the marriage the time of his decease, at two terms in the year, Whitsunday and Martin­ mas, by equal portions, beginning the first term’s payment thereof at the first Whitsunday or Martinmas next and im­ mediately following the said Donald Nicolson his decease, for the half-year preceding that term, and so forth yearly there­ after during her lifetime, with the sum of twenty pounds Scots of liquidate penalty for each term’s failzie, toties quo- ties. And also it is agreed, that i f it shall happen the said Florence Macleod to survive the said Donald Nicolson, she shall be provided to the sum of seven hundred merks money foresaid, in compensation of her terce o f moveables; and in that event, he likewise dispones to her the half o f the house- hold plenishing, a riding-horse, and all the sheep and goats that that shall pertain to them the time of his decease, to be intro­ mitted with by her the first Whitsunday and Martinmas im­ mediately following his decease. Which provisions above mentioned, in favour o f the said Florence Macleod, she, by these presents, accepts of in full satisfaction of any jointure, terce, or half of moveables, that may fall to her by her hus- band’s death, or which her nearest of kin can claim by her own death, in case he survive her. And, on the other part, the said Florence Macleod, by these presents, assigns and dispones, to and in favour of the said T H E P IO N MrH I sHE F the interest of three thousand merks money, provided to her in liferent by the deceased Archibald Macqueen of Totte, bearing date day of years, with the contract itself, and all that has followed or may follow thereupon; surrogating and substituting the said T HE P IO NMrH I sHE F in her full right and place of the same; which assignation she binds and obliges herself to warrant from any fact or deed, done by her or foresaids, prejudicial hereto, allenarly. And both parties consent to the registration hereof in the books o f council and session, or others competent, to have the strength of a decreet interponed thereto, that letters of horn­ ing on six days charge, and all other necessary execution, may pass hereupon in form as effeirs. And thereto constitute *) their procurators, & c. In witness where­ of, these presents, written upon this and two preceding pa­ ges of stamped paper, are subscribed by both parties, place and date first above written, before these witnesses, Mr Do- nald Macqueen minister of Kilmuir in Trotterness, and John Maclean surgeon in Trotterness, writer hereof. (Signed) T H E P IO N MrH I sH E l o I H e n E r n c P r I n H O l Don. Mac­ queen witnes s. John Maclean witness. LB. /ffcuj • N I * 'A yfZ& m-C rft Z e. Z£^ /V, Oi.’ c?' U t^ fj /yj &cj 4&*- (rf'at&rz- ronZs; Lewur/??* f_ oics/i- rr^ rt Ubi ofi, $rt ucr G)^ AAor jft'jrrrv /ziz^^rz^cd tc c A J i^ c m V c Y ^ a) £ t/~A $sJc^£ r?^ rrz <2r*T_ f C ry fir? £ C Z ^t^yr CJC-'3& err AO (J£& rv/l£-*t‘- '- '---- cy I'L fe r r J 7ftr?r y j r a r e cy ^ h s e w t u 4 y h, m f i,hh ’y.c' ^ ffi o / y ArA#>.. * f- A, ra ‘ 5 J u ^ n jc) m l € fu l '^ y y A \si / R dAdd* n {j97*./^rz J 0 cA A /'/A V & A& *z,/ / /. * / /- •' /, / *, * * ^ * t/c& y iy& o L& n / /, & <?tA 7* A?? d den. 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