Act, 12 March 1705, Edinburgh

Edinburgh 12th March 1705

D1705/3/6

D1705/3/6¹

Act

Act In favours of Sir William Bruce of Stenhouse for an aliment

Anent the petition given in and presented to the Lords of her Majesties privie Councill, by Sir William Bruce of Stenhouse Humbly Shewing, That where Sir William Bruce of Stenhouse the Supplicants Grandfather in the sixtie one year of his age haveing married Alisone Turnbull Relict of Butler of Kirkland in the Fourtieth year of her age, he did out of ane Estate of Three thousand merks a year provyde her to a yearly Lyfrent of Eighteen Hundered merks, tho incumbred with great debts, The Marriage did only Subsist for two years, The petitioners Grandfather having dyed dureing which tyme the Children of her former marriage were maintained in his Family, after the petitioners Grandfathers Decease, Sir William Bruce this Father was necessitat to apply to the Lords of privie Councill for ane aliment out of this insupportable Lyfrent upon the ground that his Fathers whole estate was more then exhausted by the debt and Lyfrent, In the mean tyme befor his Fathers proces took effect he dyed, And the Lyfrentrix forseeing that ane aliment would be modified out of her Lyfrent, She prevailled with the Laird of Quarrell then the Supplicants Tutor to accept of Six Hundereth Merks And therby prevent a greater Modification by the Lords of privie Councill, after the petitioners Majority he was willing to avoyd all furder Complaint, while it was possible for him to Subsist upon that small allowance, But his Family being increassed by many small Children he was no longer able to Subsist as will appear by a true Rentall, and the yearly burdens given in with the said petition, Wherby after Stateing the restricted² annuity, there only remained ane hundereth and seventie eight pound Scots for himselfe and numerous Family, And therfore and Seeing by the Law and knowen practise of this Kingdome, The Lyfrentrix is obliedged to intertain the heir if She lyfrent his whole estate, Which is the petitioners case, He was necessitat to apply to the saids Lords, and he did furder humbly represent that this Lyfrentrix was but two years married to his Grandfather, During which tyme he had never a Sixpence by her, but was burdened with the aliment of her Children by a former Husband, and that after his death, She hath married Four or Fyve Husbands, and hath considerable lyfrents by them all, and is presently married to John Grahame of Kilearne whyle in the mean tyme the Supplicant labours under great difficultie, Therfore Craveing the saids Lords to take the Supplicants case to their Serious Consideration, And to modifie such a furder allowance out of the remaineing Twelve thousand merks of joynture, as the saids Lords shall think fitt Suitable to the petitioners condition, and the Circumstances of this Lyfrentrix or if need were to grant warrand for citeing the said Alison Turnbull and her Husband, as the said petition bears, The Lords of her Majesties privie Councill having Considered the above petition given in to them by Sir William Bruce of Stenhouse, And the Samen being read in their presence, The Saids Lords Doe heirby grant Warrand to the petitioner to Cite Alison Turnbull Spouse to John Grahame of Culearne, and the said John for his Interest, to appear befor the saids Lords of her Majesties privie Councill, Upon the Twentie seventh day of February instant, and answer to what is Contained in the within petition, and to what the petitioner hes further to represent in the said matter, as ane act extracted theranent extant in proces bears, Upon which Act the Said Sir William Bruce caused Cite the Said Alison Turnbull, and John Grahame of Culairne her Husband, for his Interest, To Compear befor the Saids Lords of privie Councill day forsaid to answer to the effect abovementioned, as ane execution therupon under the hand of Robert Bannatyne one of the Meacers of privie Councill more fully bears, Therafter upon the said twentie seventh day of February last, The Said Act being called and both pairties Compearing personally at the Batt with there advocats, The advocats for the Defenders gave in the answers following, viz: By Contract of Marriadge, betwixt Sir William Bruce of Stenhouse, and the said Dame Alison Turnbull, She is provyded in case She Survive him to ane lyfrent annualrent of Eighteen hundered merks per annum, The Marriage having Subsisted Four years, and Sir William Bruce his eldest son dying, the Lady for respect to the Family and her Husbands memory, enters in Contract with the Laird of Quarrell Sole Tutor to this Sir William, Wherby for preserveing of the Family, and in lieu of ane Aliment could be Claimed of her, She restricts her Eighteen Hundered merks to Twelve Hundered merks per Annum, which aggreement Quarrell the Tutor, binds Stenhouse his pupill to warrand conforme therunto, Both pairties have peaceably lived and acquiesced now by the space of twenty fyve years, Whether Sir William Bruce of Stenhouses circumstances be altered by accident misfortune, or the increass of his Family by Children is not observable by any Save himselfe, hower he has Complained to their Lordships of Councill, that by the said Ladies lyfrent and debts affecting his estate, He is not able to live unless he have a further aliment from the Lady the Lyferenter, of so great a pairt of his estate, And heirwith presents a Rentall, making his estate, but Three thousand merks a year, and ane list of debts, which with the Ladies joynture near equals the same, To all which it is answered That Superiors while they have their Vassalls estate in their hands by reason of ward, through the Minority of their Vassalls are obliedged to maintain the minor Vassall during that space, and that in some cases this has been extended to Lyfrenters of haill estates, yet this Defender is in none of these cases, neither being Superior nor Lyfrenter, but only ane Creditor for ane lyfrent Annualrent, So that as the same cannot inlarge by the dearth of Victuall, or Improvement of the ground, So neither can the same diminish by the low rates, or neglect of Labourers, And as in the one case She has no advantage, so neither in the other can She sustain prejudice, albeit upon these grounds the Lady be free from any maintenance, or aliment to the Air, yet She was so tender to the Family, wherof once She was the wyfe, that She quitt Six Hundered merks, being the third in favours of the Air the persuer, And this being by ane established Aggreement cannot but be also effectuall, as if by legall Sentence, And So Stopp all Complaints and proces on this behalfe, especially Considering that this aggreement has taken effect, And become established by the Space of twentie fyve years And a forgivance for some years preceiding, The Lords are likewise intreated to Consider this Speciality that in this case the Lady did not discharge the Six hundereth merks quite by her, but did assigne the same, which because of the preference it carryes by vertue of My Ladyes Infeftment by itselfe, is ane aliment if there were any need that way, But the persuer is not in that case, tho the Lady represents this to the Lords informative The Lady wishes Stenhouse well, but cannot neglect to tell if she had exacted the Six hundereth merks these years bygone She could have Spared more, and he would have been easier pleased, but Since it is thus She desires to defend her own just Interest, and to contend first That being ane aboverent She is not lyable at all to aliment the air, and Secondly as the Law affoords the Terce of the Husbands estate to their wifes So She has given the Terce of her Lyfrent to her Husbands Air for his aliment by speciall Transaction, which cannot be altered but by reduction therof, And She must say that this is the first Air, so kyndly treated, that ever so unkyndly trated with his predecessors wyfe; Wheras he pretends that his estate is but Three thousand merks by year, and that the debt is as great as contained in the Inventar, It is Answered That the estate is ane halfe greater then he calls it, for wheras he calls the estate Three Thousand, the same Compting the Victuall at One hundereth pound the Chalder, at which rate he has rentalled the one halfe exceeds Fyve Thousand merks per annum, And as for the debts they are mustered up above what was due by his Grandfather, to whom this Lady was wyfe, and even fair above what truly they are, and in all this he neglects to add to his estate the Tocker received by the Lady, and if the Lady thought this Should be anything noticed by the Lords, She is able to instruct a great pairt of the debts in the List Satisfied But because the Estate at the true Rentall is really well able much more then to defray the Lyfrent and annualrents of the debts, The Lady Shall give their Lordships little trouble in this matter, These aliments fall not ordinarly to be persued befor their Lordships, there being a knowen and ordinary proces for that purpose befor the Lords of Session, wherin the Rentall of the estate, the debts of the Defunct are distinctly proven so that a view can be made of the condition of the appearand Air which cannot be done in any summar proces befor their Lordships, Its calumniously informed, and to no purpose that the Ladyes Children by her former Husband were maintained in Stenhouse house, because when ever they were there Stenhouse was fully payed for their intertainment, and they were as profitable guests, as any came to the house, and however Stenhouse got by the Lady what might have deserved a better provision then any she has, From all which it is clear, that there is no ground for this proces, the same being long since transacted, and the Tranfaction established by ane continued acquiescence of twentie fyve years and forgivance of bygones, as the said answers also bears, Which Act and answers being read, and pairties Lawiers fully heard at the Barr and Removed, the saids Lords delayed the said affair till nixt Councill day, and nominated a Committie to settle and aggree pairties in the mean tyme, Therafter upon the day and date of thir presents, The Lords of her Majesties privie Councill haveing heard a Verball report made to them in the affair betwixt Sir William Bruce of Stenhouse and Alison Turnbull Lady Culearne, and John Grahame of Cullearne her Husband, By the Committie appoynted to Settle and aggree pairties, and the saids Lords haveing Considered the whole matter, The saids Lords doe heirby Modifie, the soume of Two Hundereth Merks yearly as ane further aliment to the said Sir William out of the remaineing Twelve hundereth Merks of joynture payed to the said Alison Turnbull out of the said Sir Williams estate, And appoynts the said John Graham of Culearne To make payment therof accordingly to the said Sir William Bruce; and that at two termes in the year Whitsonday and Mertimess be equall portions, Beginning the first termes payment therof, at the Terme of Whitsonday nixt to Come for the halfe year preceiding, And suae furth yearly and termely therafter, And appoynts letters of horning under the Signet of Councill upon Fyfteen dayes to be direct heirupon in forme as effeirs