3 Dunl 31
| Jurisdiction | Scotland |
| Judgment Date | 12 November 1840 |
| Year | 1840 |
| Date | 12 November 1840 |
| Docket Number | No. 3 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Monereiff. T.
Provision—Marriage-Contract—Faculty.—
THE late Mr John Mowbray, W.S., was married first to Miss Elizabeth Scougall. By the marriage-contract, Mowbray bound himself ‘to make payment to the child or children of the present marriage, and who shall be in existence at its dissolution, whether by [the decease of] the husband or wife, of the sums of money after specified, viz. if there happens to be only one child, whether male or female, the sum of £6000 sterling, and if two or more children, the sum of £9000 sterling, and which respective sums shall be payable at the first term of Whitsunday or Martinmas after the expiry of twelve months from the decease of the said John Mowbray, and bear interest from the first of these terms immediately preceding his decease. But it is hereby provided and declared, that if any of the children of the marriage shall happen to be in minority at the period before mentioned, the payment of the provision of such of the said children as are minors shall be suspended until they respectively attain the years of majority, or be married, but shall bear interest as before specified, which provisions in favour of the children of the marriage shall be divisible among them in such proportions as the said John Mowbray shall think proper to appoint by any writing under his hand; and failing such division, the whole children are to have equal shares; declaring, that whatever sums the said John Mowbray shall pay or advance on account of the said children respectively, in promoting them, or any of them, in the world, in apprentice fees, purchasing commissions, civil or military, stock in trade, or otherwise, (excepting clothes, education, and aliment,) shall be imputed in payment pro tanto of the provisions in their favour before specified, and an account or statement of such advances, signed by the said John Mowbray, shall sufficiently instruct their amount, without any other voucher. And in the event of the said Elizabeth Scougall predeceasing the said John Mow-bray, and his entering into a second marriage, while there is issue of the present alive, and should he, in these circumstances, not find it eligible or for the interest of the child or children of the present marriage to remain in family with their mother-in-law, he, in these events, binds himself to expend annually on the maintenance, clothing, and education of each child the sum of £50 sterling, at least so long as they do not live in family with him. The said provisions in favour of the children of the marriage are hereby declared to be in full satisfaction to them of all bairns'-part of gear, legitim, portion-natural, executry, and every other thing which they can by law ask or claim in consequence of the decease of the said John Mowbray, excepting only what he may think fit further to bestow of his own good-will.’
This marriage was dissolved in 1804 by the death of Mrs Mowbray, at the date of which event two children of the marriage were in existence, viz. Robert Lithan Mowbray and Jane Tod Mowbray. Robert died in 1824 without issue, having attained majority. No share of the sum settled upon the children of the marriage by the marriage-contract had been assigned to him, and he left no settlement or testamentary writing. Jane Tod Mowbray was married in 1829 to Mr Ellis Martin Brodie, their contract of marriage bearing that her father, ‘the said John Mowbray, has, of the date of these presents, made payment to the said Ellis Martin Brodie, and Jane Tod Mowbray, of the sum of £1000 sterling, contained in a deposit receipt by Sir 'William Forbes and Company, bankers in Edinburgh, to him, and indorsed to the said Jane Tod Mowbray, dated the 4th day of April current, which sum is to be imputed towards the patrimony which may be provided to the said Jane Tod Mowbray by her father, and which, accordingly, she now declares to have been received on that account, and she and the said Ellis Martin Brodie discharges the said John Mowbray of the said sum.’ By the contract, Mrs Brodie further assigned to trustees her whole property, and particularly all her right and interest in virtue of her father and mother's contract of marriage, and all the sums of money to which she might succeed through her father, ‘over and above the foresaid sum of £1000 now paid to the said Ellis Martin Brodie and her, in name of patrimony.’
Mr Mowbray, who had entered into a second marriage in 1807, died in 1838, leaving a widow and nine children. Subjoined to the scroll of his marriage-contract with his first wife, he executed, in June 1837, a holograph writing as follows:—’ I, John Mowbray of Hartwood, W.S., in virtue of the power of division reserved to me (see page 7) with regard to the provisions in favour of the children of this marriage, of whom there were two, Jane Tod and Robert Lithan Mowbray, do hereby declare, that the sum to be payable to the said Jane Tod,...
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