Act, 20 November 1694, Edinburgh

Act, 27 December 1694, Edinburgh

Edinburgh the Twentie day of november Jaj vjc nyntie four years

D1694/11/171

Act

Act The Tutors of the Viscount of Arbuthnot.

Anent a Petition given in to the Lords of their majesties privy Councill be Sir Thomas Burnett of Leyes and remanent tutors of the viscount of Arbuthnot Shewing That the late viscount of Arbuthnot haveing severall years before his decease nominat severall of his freinds and relationes to be tutors to his Childrein He did also appoint the Custody of them to be with the Ladie Leyes his sister german This being done six or seven years before his death, and some of his freinds who were Contained in the first nominatione being dead occasioned the same to be written over againe in Aprill Last without any variation except in nameing of other freinds in place of those who were dead, whose names he Caused writt doun upon the margine of the first nominatione, And then ordered the same to be transcryved, which was accordingly done, And therafter signed in presence, of the writter and two or three of his oun servants And at the same time he did also signe a paper bearing the portiones and aliement that he allowed for his Childrein untill ther bonds of provision came to bear annualrent, all which he did by the advice of the best lawiers of the kingdome upon full informatione of his Circumstances and the Conditione of his estate, Which papers he delivered to Alexander Innes his servant, and after his buriall at the Ladies desire they were delivered by him to the tutors, and read before the Earle and Countes of Southerland and others freinds then present, My Lady and her relationes being displeased that non of them were named to be tutors, and that the Custody of her Childrein were taken from her, She demanded Doubles of the papers; Which were accordingly given her and albeit she was Consciouse to her self, That what her husband did in this mater Could not be quarrelled be her upon any ground of Law, yet she gives in a petition to the saids Lords Representing that the nominatione of tutors and setleing of his Childrein was no free and deliberat acts of her husbands But that he was Imposed upon in the extreamitie of his sicknes, By the Importunitie of the Ladie Lyes, and the rest of the tutors, and that he was under a deligirium at the time after a Convulsion fitt, and that they were not read to him, And that his hand was led with the pen when he subscryved, and that what he did is inconsistant with it self, And that the portiones of some of the elder Childrein is but the half of what is given to the younger Upon these representationes and a Sumonds of reductione raised at the Ladies instance with Concourse of Mr John Arbuthnot the tutor of Law, who is one of the accepting tutors nominat by the viscount, Their Lordships were pleased to allow my Ladie to continue in the possesione of the house of Arbuthnot and to have the Custody of her Childrein untill the first of December, And in the mean time discharged the petitioners from medling with the Chartor Chist Or makeing of Inventars, This being done in the petitioners absence, and without Citeing of parties they conceave themselves bound alse much for the vindication of their oun Credit and honor as for the weell and advantage of the pupills affairs Comitted to their trust, To represent to ther Lordships what they could have answered to my Ladies petitione if they hade been either cited or present In the first place they could have absolutly denyed that ther was any of them present or in the roome with the viscount, when he signed the papers except his oun brother Mr John Arbuthnot, And albeit the Ladie Leyes his sister was also present, yet she was a person of more honor and Discreatione Then to have used the least Importunitie with her brother, In matters of that nature, And it is very weell knowen to my Lady Arbuthnot that her husband needed not the advice farrless to be Importuned by any bodie to what he did, either in the nomination of the tutors or Setlement of his Childrein, which could be no Surprize to my Ladie, For its weell knowen that whatever was my Lord Arbuthnots oppinion of my Ladies qualificationes for other affairs, yet he did not think it fitt to give her the educatione or Custodie of his Childrein wherof my Ladie may be Suficiently Convinced by his subscryved latter will and testament subscrived seven years agoe, And which is a plain evidence of his oppinion was then alse weell as at the hour of his death, and as to my Ladies Complaint of the In-equalitie of the Childreins portiones, The petitioner humbly conceaves That they are not bound to make any answer But that it was in the viscounts power so to doe, and that what he did in the matter was upon Considerations best know’n to himself, and as to the other grounds of the Complaint in relatione to my Lords indispositione and incapacitie or that his hand was led with the pen etc The petitioners not being present They referr the answer of these to ane testificat under the hands of Mr Francis Melvill parish minister, Who Declairs that he did many times Converse with the viscount the time of his sicknes, Having been above ten dayes altogither closs in his house besides other times he hade occasione to visit him yet he did never hear him utter any Impertinent word or expression, But found him upon all Occassiones and Subjects more rationall accute and sincible then ever he hade found him in his best health, And by another attestatione under Doctor Gordon phisitian his hand, who Declairs he haveing attended the viscount dureing his sicknes That generally throw the Current of his of sicknes he hade his Judgment and reasone intire as in the time of his best health, So that he was alse Capable to order his affairs as at any other time in his best health, nor was ther any ground to questione any of his deeds upon the account of any delirium both which testificats wes therwith produced Declair this to be of treuth upon soull and Conscience, and who are persones of unquestionable fame and reputatione, And the petitioners desyres that the testificats might be read, By which and by what is here2 represented to the saids Lords will be suficiently Convinced that my Ladies Complaint proceeds more from humor then any other Just ground She hath to quarrell what her husband hath done in this matter, And its hoped the saids Lords would Consider the petitioners as persones of that Discreatione, That they would not undertake ane office of this natture Far less have taken any indirect methods to obtaine the same if it were not the difference they or to the viscounts Last will, And standing of his familly, For which they were resolved to Imploy their Credit alse weell as their paines, which the Circumstance of that estate will requyre in a great measure Which being Considered the saids Lords are to Judge how farr my Ladie hath been a freend to the familly by this Complaint which can have no other effect but to retard and Discourage the petitioners In the managment Comitted to them, and give occasione to the Creditors to goe in dilligence for their debts to the utter ruine of that estate to which my Ladie hath hade but litle regaird since her husbands death, And particularly in bringing her eldest sone to Edinburgh in the winter time, albeit ane infant who Could not but be in hazard of his life by such a Journey and for which its supposed her Ladieship hade no warrand by the saids Lords interloquitor, By which she was only to Continue the possessione of the house and Custody of the Childreen to the first of December, And Therfore Humbly Craveing the saids Lords to take this matter to their serious Consideratione For if this setlement shall be overturned by Calumnious representationes It would be of dangereous Consequence to the natione alse weell as tend to the prejudice of his ancient familly, And seing the grounds of my Ladies Complaint resolves in reasones of reductione of her husbands deeds which are only Competent before the Lords of sessione, and that the proces is with Concourse of the tutor in law (who is one of the petitioners) and disclaimes the samen, That therfore the saids Lords would be pleased to take off any stopt put to the petitioners manadgment in the pupills affairs by their former interloquitor and ordaine the Custody of the Air and other Childrein to take effect Conforme to their fathers appointment, or if the saids Lords thought fitt the tutors are Content the point of right may be remitted to the Lords of sessione to be determined by them Sumarly as accords as the petition bears The Lords of their Majesties privy Councill haveing Considered this petition given in to them be Sir Thomas Burnet of Leyes and remanant tutors of the viscount of Arbuthnot with another petitione for the Lady Arbuthnot with another petitione for the Lady Arbuthnot They heirby of Consent of both parties Remitt to the Lords of Councill and Sessione Sumarly to discuss the point of right in debate betwixt the parties and in the mean time Continues the viscountess of Arbuthnot in the possessione of the house and yeards of Arbuthnot and Custody of her Childrein untill the first day of march nixt, And appoints her to have fewelling for the use of her house And allowes the tutors to uplift the rent of the lands and midle with the wrytes of the deceast viscount as accords in law.

Edinburgh the Twentie day of november Jaj vjc nyntie four years

D1694/11/171

Act

Act The Tutors of the Viscount of Arbuthnot.

Anent a Petition given in to the Lords of their majesties privy Councill be Sir Thomas Burnett of Leyes and remanent tutors of the viscount of Arbuthnot Shewing That the late viscount of Arbuthnot haveing severall years before his decease nominat severall of his freinds and relationes to be tutors to his Childrein He did also appoint the Custody of them to be with the Ladie Leyes his sister german This being done six or seven years before his death, and some of his freinds who were Contained in the first nominatione being dead occasioned the same to be written over againe in Aprill Last without any variation except in nameing of other freinds in place of those who were dead, whose names he Caused writt doun upon the margine of the first nominatione, And then ordered the same to be transcryved, which was accordingly done, And therafter signed in presence, of the writter and two or three of his oun servants And at the same time he did also signe a paper bearing the portiones and aliement that he allowed for his Childrein untill ther bonds of provision came to bear annualrent, all which he did by the advice of the best lawiers of the kingdome upon full informatione of his Circumstances and the Conditione of his estate, Which papers he delivered to Alexander Innes his servant, and after his buriall at the Ladies desire they were delivered by him to the tutors, and read before the Earle and Countes of Southerland and others freinds then present, My Lady and her relationes being displeased that non of them were named to be tutors, and that the Custody of her Childrein were taken from her, She demanded Doubles of the papers; Which were accordingly given her and albeit she was Consciouse to her self, That what her husband did in this mater Could not be quarrelled be her upon any ground of Law, yet she gives in a petition to the saids Lords Representing that the nominatione of tutors and setleing of his Childrein was no free and deliberat acts of her husbands But that he was Imposed upon in the extreamitie of his sicknes, By the Importunitie of the Ladie Lyes, and the rest of the tutors, and that he was under a deligirium at the time after a Convulsion fitt, and that they were not read to him, And that his hand was led with the pen when he subscryved, and that what he did is inconsistant with it self, And that the portiones of some of the elder Childrein is but the half of what is given to the younger Upon these representationes and a Sumonds of reductione raised at the Ladies instance with Concourse of Mr John Arbuthnot the tutor of Law, who is one of the accepting tutors nominat by the viscount, Their Lordships were pleased to allow my Ladie to continue in the possesione of the house of Arbuthnot and to have the Custody of her Childrein untill the first of December, And in the mean time discharged the petitioners from medling with the Chartor Chist Or makeing of Inventars, This being done in the petitioners absence, and without Citeing of parties they conceave themselves bound alse much for the vindication of their oun Credit and honor as for the weell and advantage of the pupills affairs Comitted to their trust, To represent to ther Lordships what they could have answered to my Ladies petitione if they hade been either cited or present In the first place they could have absolutly denyed that ther was any of them present or in the roome with the viscount, when he signed the papers except his oun brother Mr John Arbuthnot, And albeit the Ladie Leyes his sister was also present, yet she was a person of more honor and Discreatione Then to have used the least Importunitie with her brother, In matters of that nature, And it is very weell knowen to my Lady Arbuthnot that her husband needed not the advice farrless to be Importuned by any bodie to what he did, either in the nomination of the tutors or Setlement of his Childrein, which could be no Surprize to my Ladie, For its weell knowen that whatever was my Lord Arbuthnots oppinion of my Ladies qualificationes for other affairs, yet he did not think it fitt to give her the educatione or Custodie of his Childrein wherof my Ladie may be Suficiently Convinced by his subscryved latter will and testament subscrived seven years agoe, And which is a plain evidence of his oppinion was then alse weell as at the hour of his death, and as to my Ladies Complaint of the In-equalitie of the Childreins portiones, The petitioner humbly conceaves That they are not bound to make any answer But that it was in the viscounts power so to doe, and that what he did in the matter was upon Considerations best know’n to himself, and as to the other grounds of the Complaint in relatione to my Lords indispositione and incapacitie or that his hand was led with the pen etc The petitioners not being present They referr the answer of these to ane testificat under the hands of Mr Francis Melvill parish minister, Who Declairs that he did many times Converse with the viscount the time of his sicknes, Having been above ten dayes altogither closs in his house besides other times he hade occasione to visit him yet he did never hear him utter any Impertinent word or expression, But found him upon all Occassiones and Subjects more rationall accute and sincible then ever he hade found him in his best health, And by another attestatione under Doctor Gordon phisitian his hand, who Declairs he haveing attended the viscount dureing his sicknes That generally throw the Current of his of sicknes he hade his Judgment and reasone intire as in the time of his best health, So that he was alse Capable to order his affairs as at any other time in his best health, nor was ther any ground to questione any of his deeds upon the account of any delirium both which testificats wes therwith produced Declair this to be of treuth upon soull and Conscience, and who are persones of unquestionable fame and reputatione, And the petitioners desyres that the testificats might be read, By which and by what is here2 represented to the saids Lords will be suficiently Convinced that my Ladies Complaint proceeds more from humor then any other Just ground She hath to quarrell what her husband hath done in this matter, And its hoped the saids Lords would Consider the petitioners as persones of that Discreatione, That they would not undertake ane office of this natture Far less have taken any indirect methods to obtaine the same if it were not the difference they or to the viscounts Last will, And standing of his familly, For which they were resolved to Imploy their Credit alse weell as their paines, which the Circumstance of that estate will requyre in a great measure Which being Considered the saids Lords are to Judge how farr my Ladie hath been a freend to the familly by this Complaint which can have no other effect but to retard and Discourage the petitioners In the managment Comitted to them, and give occasione to the Creditors to goe in dilligence for their debts to the utter ruine of that estate to which my Ladie hath hade but litle regaird since her husbands death, And particularly in bringing her eldest sone to Edinburgh in the winter time, albeit ane infant who Could not but be in hazard of his life by such a Journey and for which its supposed her Ladieship hade no warrand by the saids Lords interloquitor, By which she was only to Continue the possessione of the house and Custody of the Childreen to the first of December, And Therfore Humbly Craveing the saids Lords to take this matter to their serious Consideratione For if this setlement shall be overturned by Calumnious representationes It would be of dangereous Consequence to the natione alse weell as tend to the prejudice of his ancient familly, And seing the grounds of my Ladies Complaint resolves in reasones of reductione of her husbands deeds which are only Competent before the Lords of sessione, and that the proces is with Concourse of the tutor in law (who is one of the petitioners) and disclaimes the samen, That therfore the saids Lords would be pleased to take off any stopt put to the petitioners manadgment in the pupills affairs by their former interloquitor and ordaine the Custody of the Air and other Childrein to take effect Conforme to their fathers appointment, or if the saids Lords thought fitt the tutors are Content the point of right may be remitted to the Lords of sessione to be determined by them Sumarly as accords as the petition bears The Lords of their Majesties privy Councill haveing Considered this petition given in to them be Sir Thomas Burnet of Leyes and remanant tutors of the viscount of Arbuthnot with another petitione for the Lady Arbuthnot with another petitione for the Lady Arbuthnot They heirby of Consent of both parties Remitt to the Lords of Councill and Sessione Sumarly to discuss the point of right in debate betwixt the parties and in the mean time Continues the viscountess of Arbuthnot in the possessione of the house and yeards of Arbuthnot and Custody of her Childrein untill the first day of march nixt, And appoints her to have fewelling for the use of her house And allowes the tutors to uplift the rent of the lands and midle with the wrytes of the deceast viscount as accords in law.

1. NRS, PC2/25, 83r-86r.

2. Insertion.

1. NRS, PC2/25, 83r-86r.

2. Insertion.