Act, 11 October 1694, Edinburgh

Act, 27 December 1694, Edinburgh

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/91

Act

Act The Viscountes of Arbuthnot

Anent the petition given in to the Lords of their Majesties privy Councill be Anna Viscountes of Arbuthnot for her self and her Childrein under age with Concourse of the Earle of Southerland her father Shewing That quher it pleased God lately to remove her husband by death which hapned throw a hote violent feaver the very time of the petitioners being in Child bed and Caried him of in a few dayes without his haveing made any previous nominatione of tutors or testament or provisions for his Cheldrein, But ther being about hi in his sickness his sister the Lady Leyes and Severall other of his relationes They thought fitt to take the advantadge of his incapacity, and the petitioners indispositione and to Cause him subscryve a testament Containeing a nominatione of Tutors and Certaine other deeds according to their oun pleasure and not only to the visible neglect of the petitioner the mother of all his Cheldrein and of all his relationes, But to the manifast prejudice of the petitioners eldest sone his air and of the petitioners haill other Cheldrein But these deeds having been subscryved by him by the forsaid Contrivance in the hight and rage of a fever and Immediatly after he hade suffered a great deliquium throw a Convulsive fitt and without so much as haveing been ever read or truely and distinctly Consented to by him Cannot possibly subsist in law, And Farder these deeds doe in themselves containe such obvious inconsistancies as may plainely eneough evince after what maner they were elicit, For first altho ther be a nominatione of no less then nyne tutors yet nether is the mother the petitioner, nor any of her relationes noticed to be one of them, Secundo some of the tyme that they have Caused him name did Grossly malverse in the manadgment of his estate, which he gave them in his oun life, and quherof he himself was very sencible Tertio of the nyne tutors he makes thrie a quorum without any sinc quo non, so that the tutory may inavoidably fall in thrie quorums Quarto they Cause him expressly take from the petitioner the Custody and keeping of all her Childrein albeit four of them be under fyve years of age and her eldest sone not yet Eight and five of them daughters and two only sones, and this they have done So rudely and unnatureally (for far be it for any to think that this were her husbands deed) that they have not so much as given the petitioner the Custody of one of her Cheldreen even dureing her widow head Quinto they have made him appoint not only very small but strange and unequall provisions for his Cheldrein as thrie Thousand merks to ane elder daughter and Six Thousand merks per peice to two Immediatly younger Sexto The the2 appointments for the petitioners Cheldreins aliement be very hard and insuficient yet they make their father adjure them under the paine of his Curse not to come in the Contrary of what they call his will and pleasure And Lastly the appointments of the aliement are made So inconsiderable that some of the Cheldrein have almost a double more aliement in their younger years then the rent of their portiones that comes in Leiw therof in their elder years By which inconsistancies and absurdities It may plainely eneough appear that her deceast husband Could have Litle or no understanding for the time of what they made him doe But as these things were Contrived as said is, So not only was the petitioner removed by them (and rudely enough) at the doeing therof But it is very Certaine that he gave no directione for the wryting nor were the papers then written read to him or was he in any caice to understand them tho read nor Could he of himself signe them bot in effect hade his hand sett and led to them by one of the witnesses Upon all which grounds the petitioner according to his intrest of blood for her self and her said other Cheldrein raised reductione before the Lords of Sessione of the forsaid deeds But tho these pretended tutors have furnished them with a farder argument to remove them as suspect (albeit the forsaid nominatione were not null) by their presumeing to intromitt with papers and wrytes and the Charter Chist and other things before making Inventar yet they still persist to pretend to and exerce the forsaid office and have given Citationes to make Inventaries of the estate and wrytes and alsoe they threaten to take from the petitioner her Childreen and to remove her from her husbands house to a house they will Call the petitioners Joyntur house tho not all in repair or habitable So that the petitioner is necessitate in a caice so hardly Circumstantiat and which admitts of no delay now in this vaccatione time to apply to the saids Lords for a necessary and therfore doubtless a Just remeedie And seing it is weell knowen and obvious what prejudice the petitioner and her poor Cheldrein may sustaine by the methods that these unkynd freinds have taken and by their prosecuteing and Improveing of the same and that now in this time of vacatione the petitioner has no remeedie and that even tho the sessione were sett the reductione the petitioner has intended must have termes and may abyde a long proces In which interim these pretended tutors (wherof five only and these the least desyreable of them have accepted) may doe such hurt and prejudice as ought in all reasone to be prevented And Therfore humbly Complicating the saids Lords to the effect aftermentioned The Lords of their majesties privy Councill having Considered this petitione given in to them be the Viscountes of Arbuthnot and answers made therto for Sir Thomas Burnet of Leyes They heirby prohibit and Discharge the tutors nominat by the deceast Viscount of Arbuthnot to midle with the viscounts writts or Chartor Chist or take from the Viscountes the Custody of her Cheldrein or to remove her from the house of Arbuthnot or anywayes to trouble or molest her in the Custody and keeping of her said Cheldrein or in the peacable possession of the said housses untill the first day of december nixt to come And in the mean time Recomends to the Lords Ross and Polwarth The Lord Advocat and Lord Justice Clerk to meet with both parties or to hear and Consider what may be said for them, And indeavor to setle and agree them and incaice of deficulty to report to the Councill And Declairs any thrie of the saids Lords to be a suficient quorum.

Edinburgh the Eleventh october Jaj vjc nyntie four years

D1694/10/91

Act

Act The Viscountes of Arbuthnot

Anent the petition given in to the Lords of their Majesties privy Councill be Anna Viscountes of Arbuthnot for her self and her Childrein under age with Concourse of the Earle of Southerland her father Shewing That quher it pleased God lately to remove her husband by death which hapned throw a hote violent feaver the very time of the petitioners being in Child bed and Caried him of in a few dayes without his haveing made any previous nominatione of tutors or testament or provisions for his Cheldrein, But ther being about hi in his sickness his sister the Lady Leyes and Severall other of his relationes They thought fitt to take the advantadge of his incapacity, and the petitioners indispositione and to Cause him subscryve a testament Containeing a nominatione of Tutors and Certaine other deeds according to their oun pleasure and not only to the visible neglect of the petitioner the mother of all his Cheldrein and of all his relationes, But to the manifast prejudice of the petitioners eldest sone his air and of the petitioners haill other Cheldrein But these deeds having been subscryved by him by the forsaid Contrivance in the hight and rage of a fever and Immediatly after he hade suffered a great deliquium throw a Convulsive fitt and without so much as haveing been ever read or truely and distinctly Consented to by him Cannot possibly subsist in law, And Farder these deeds doe in themselves containe such obvious inconsistancies as may plainely eneough evince after what maner they were elicit, For first altho ther be a nominatione of no less then nyne tutors yet nether is the mother the petitioner, nor any of her relationes noticed to be one of them, Secundo some of the tyme that they have Caused him name did Grossly malverse in the manadgment of his estate, which he gave them in his oun life, and quherof he himself was very sencible Tertio of the nyne tutors he makes thrie a quorum without any sinc quo non, so that the tutory may inavoidably fall in thrie quorums Quarto they Cause him expressly take from the petitioner the Custody and keeping of all her Childrein albeit four of them be under fyve years of age and her eldest sone not yet Eight and five of them daughters and two only sones, and this they have done So rudely and unnatureally (for far be it for any to think that this were her husbands deed) that they have not so much as given the petitioner the Custody of one of her Cheldreen even dureing her widow head Quinto they have made him appoint not only very small but strange and unequall provisions for his Cheldrein as thrie Thousand merks to ane elder daughter and Six Thousand merks per peice to two Immediatly younger Sexto The the2 appointments for the petitioners Cheldreins aliement be very hard and insuficient yet they make their father adjure them under the paine of his Curse not to come in the Contrary of what they call his will and pleasure And Lastly the appointments of the aliement are made So inconsiderable that some of the Cheldrein have almost a double more aliement in their younger years then the rent of their portiones that comes in Leiw therof in their elder years By which inconsistancies and absurdities It may plainely eneough appear that her deceast husband Could have Litle or no understanding for the time of what they made him doe But as these things were Contrived as said is, So not only was the petitioner removed by them (and rudely enough) at the doeing therof But it is very Certaine that he gave no directione for the wryting nor were the papers then written read to him or was he in any caice to understand them tho read nor Could he of himself signe them bot in effect hade his hand sett and led to them by one of the witnesses Upon all which grounds the petitioner according to his intrest of blood for her self and her said other Cheldrein raised reductione before the Lords of Sessione of the forsaid deeds But tho these pretended tutors have furnished them with a farder argument to remove them as suspect (albeit the forsaid nominatione were not null) by their presumeing to intromitt with papers and wrytes and the Charter Chist and other things before making Inventar yet they still persist to pretend to and exerce the forsaid office and have given Citationes to make Inventaries of the estate and wrytes and alsoe they threaten to take from the petitioner her Childreen and to remove her from her husbands house to a house they will Call the petitioners Joyntur house tho not all in repair or habitable So that the petitioner is necessitate in a caice so hardly Circumstantiat and which admitts of no delay now in this vaccatione time to apply to the saids Lords for a necessary and therfore doubtless a Just remeedie And seing it is weell knowen and obvious what prejudice the petitioner and her poor Cheldrein may sustaine by the methods that these unkynd freinds have taken and by their prosecuteing and Improveing of the same and that now in this time of vacatione the petitioner has no remeedie and that even tho the sessione were sett the reductione the petitioner has intended must have termes and may abyde a long proces In which interim these pretended tutors (wherof five only and these the least desyreable of them have accepted) may doe such hurt and prejudice as ought in all reasone to be prevented And Therfore humbly Complicating the saids Lords to the effect aftermentioned The Lords of their majesties privy Councill having Considered this petitione given in to them be the Viscountes of Arbuthnot and answers made therto for Sir Thomas Burnet of Leyes They heirby prohibit and Discharge the tutors nominat by the deceast Viscount of Arbuthnot to midle with the viscounts writts or Chartor Chist or take from the Viscountes the Custody of her Cheldrein or to remove her from the house of Arbuthnot or anywayes to trouble or molest her in the Custody and keeping of her said Cheldrein or in the peacable possession of the said housses untill the first day of december nixt to come And in the mean time Recomends to the Lords Ross and Polwarth The Lord Advocat and Lord Justice Clerk to meet with both parties or to hear and Consider what may be said for them, And indeavor to setle and agree them and incaice of deficulty to report to the Councill And Declairs any thrie of the saids Lords to be a suficient quorum.

1. NRS, PC2/25, 66r-68r.

2. Sic.

1. NRS, PC2/25, 66r-68r.

2. Sic.