Edinburgh the fourtein day of Jully Jaj vjc nyntie two years
D1692/7/13
D1692/7/13
Act
Act and Remit The Lady Kinfaunes and her Sone and the Laird of Kinfauns and his tutor
Anent the two severall petitiones given and presented to the Lords of their majesties privy Councill The one therof at the instance of John Carnegie sone of the second mariadge of the deceast Alexander Carneige of Kinfauns Margrat Nairne relict of the said Alexander Carnegie for her self and as tutor to her said sone and his remanent tutors Shewing That quher the petitioners haveing formerly applyed to the saids Lords representing the intrest they hade to see the defuncts papers Inventared The saids Lords Did allow the tutors of the Childrein of both mariadges to be present at the inventaring of the defuncts writtes, And appoynted the tutors of the Childrein of aither Mariadges to make intimation hinc inde of the tyme of Inventaring and accordingly the petitioner did intimat the saids Lords act, Bot In respect the former act did not Clearly authorize the petitioner to inspect or Inventar by themselves, And that Phinhaven the tutor dative of the sone of the first mariadge hath both lately exped his tutory The petitioners doe againe beg libertie to lay before the saids Lords the grounds upon which they clame ane intrest to see, And In Respect the defuncts writtes and also his haill moveables, And farder intreat that the saids Lords would render the ordinance effectuall and authorize the petitioner at the sight of any Judge ordinary to have Inspection, If Phinhaven Should ommitt to make Inventars according to law for the reasones following viz Primo The petitioner the sone of the second mariadge is a Creditor in five hundred pund sterling his mothers contract, And the petitioner the relict is Creditor by the same Contract in ane lifrent annuitie of two Thousand five Hundred merks, And they hade reason to beleive that the defunct hade done some speciall deed in their favors, And allocat ane certaine fond for Implement of the forsaid provisiones, Secundo the sone of the second mariadge has the right of successione faillieing the only sone of the first And as the law for the securitie of the intrest of minors hade appointed Inventars to be Judicially made to the effect that the Condition of the estate might be publictly knowen to every persone interessted, Much more hath the nixt air ane speciall intrest to see that these Inventars be fairly made, The Raither because the Estate of Kinfauns came by the defuncts first Lady, hath some specialities as to the succession therin faillieng airs male of that marriadge which the petitioner Ought to see and know Tertio the petitioner the relict is executrix Creditrix etc firmed and hath confirmed the annualrents of the severall heretaball bonds lying by the defunct, and therby is concerned to see these bonds, Quarto the greatest part of the defuncts estate doeth consist in bonds and rights upon the Earle of Northesks estate, and Phinhaven being the nixt and Immediat air to this present Earle of Northesk, If the Earle should happen to decease without airs Phinhaven the tutor would succeid and become debitor and tutor to the Creditor, And Therfore It was more reasonable that a very speciall and particular Inventar should be made of these writtes, both for securitie of the pupill if he live and of the airs of the second marriadge In caice of his decease Quinto seing the law does appoint tutors to make Inventars of the defuncts wholl means It was necessary that the saids Lords should Limitt a particular tyme betwixt and which these inventars should be made to the petitioners of all dyets of inspectione of the writtes or other moveables that they might be present with Certification to Phinhaven if he faillied that the saids Lords would authorize the petitioners to have inspection of the saids writtes, and that he might Inventar the moveables at any tyme after the said dyet at the sight of any Judge ordinary, With power to the said Judge ordinary to make patent the doors of the house Erroll and of the severall Coffers, Trunks, Cabinetts or others, wher the papers or other moveables Lye And Therfore Humbly Craveing the saids Lords to prefixx a certaine dyet to Phinhaven the tutor of the first mariadge for making inventars of the defuncts writtes and estate heretaball or moveable And appoint Phinhaven to make intimatione to the petitioners of the severall dyets that he is to have inspectione in order to inventaring, And Discharge his inspectione untill he should make the forsaid intimatione to them, As also to Discharge his midleing and intromission as tutor, untill the forsaid inventars be made Conforme to the act of Parliament, And in caice of the tutors faillieing to Inspect and Compleit the forsaid Inventars betwixt and the forsaid dyet, That the Lords would authorize the petitioners to have inspection of the forsaid writtes, And to have such of the said writtes as are conceaved in their favors delivered up to them upon Inventar and recept And also that they might have access to inventar the moveaballs in order to confirmatione, And Lykewayes that the petitioner the relicts body Cloathes and parapharnalia that should be found amongst the defuncts moveables might be Delivered up to her upon recept, And that at the sight of any of the saids Lords number or any of the Lords of session or other Judge ordinary, with power to the saids Judges to make open doors of the house of Erroll and other places, And of the severall trunks Coffers, &c: wher the defuncts wrytes and moveables Lye as the said petitione bears And the other of the saids petitiones by way of answer to the forsaid petitione at the instance of Alexander Blair of Kinfauns and James Carnegie of Phinhaven his tutor Shewing That quheras Margaret Nairn relict of the deceast Alexander Carnegie of Kinfauns and John Carnegie his Sone and his tutors haveing given in a Petition to the saids Lords Representing that the relict being Creditor to her husband for the soume of Two thousand five hundred merks of Joyntur and her sone for five hundred punds sterling for his provision, haveing formerly Applyed to the saids Lords, That they might have access to have inspectione of the Laird of Kinfauns his writtes at the makeing of the inventars by the tutor of the petitioner the sone and air of the first mariage and might have such papers delivered to them as should be found to belong to them And that the saids Lords therupon hade allowed the sone of the second marriage to be present at the inventaring of the defuncts papers and appointing the respective tutors to make intimatione to others hic inde of the tyme of Inventaring the writtes and Charter Chist, And that when the former petition was presented James Carnegie of Phinhaven haveing appeared readie to exped a tutorie dative bot that since that tyme The Lords of exchequer did stop the expeding of the tutorrie before he should find better Caution then what was offered And that seing the tutors nominat to the sone of the second mariadge have accepted of the office of tutorie, And that they are readie to make inventars of the defuncts writtes Therfore Craves that the Charter Chist and haill writtes might be delivered and put in the hands of the shirreff depute of Pearth or Comissasrs of St Androwes, and to allow the relict and sone of the second mariage and his tutors to have inspectione therof, and that such wrytes as belongs to them might be delivered to them, As also to ordaine that the seallings and sequestrationes of all trunks Cloathes and other things belonging to the relict and sone of the second marriage to be taken off, That the samen may be delivered to them, And the saids Lords haveing Supperceided to give answer to the said petition Befor Phinhaven should be allowed to see and answer the samen, And now it was Humbly represented for the said Alexander Blair of Kinfauns Sone and air of the first mariage and Phinhaven his tutor That the desyre of the forsaid petition might not be granted and the forsaid deliverance of Councill upon the petition given in be the relict and sone of the second marriadge, allowing him and his tutors to be present at the inventaring of the defuncts papers ought to be rescinded Because when the forsaid deliverance was obtained It was parte in audita, And against the sone as air of the first marraige ane pupill and infant indefencles he haveing then no tutor to act or doe for him or manage his affairs Bot now Phinhaven haveing exped his tutory, he alledges that no such deliverance of Councill could have past if the pupill had then given his defences, Because all that the relect and sone of the first marriage can pretend to is only that they are Creditors to the deceast Kinfauns be the Ladies Contract of Marraige, And it is a Certaine principall in law, That Creditors as simple personall Creditors have no intresses neither to Crave exhibitione of the debitors Charter Chist for if that ware allowed then every Creditor might Crave exhibition of their debitors Chartor chist and propale the samen Which was never allowed to any person as a Simple Creditor, And seing the relict and sone of the second marriage has no other intrest Bot as pretended Creditors, They ought not not to be allowed to be present at the Sighting and inventaring of the defuncts Chartor chist And this being properly a Civill action, It is not competent to the Lords of privy Councill, Bot only to the Lords of session, And when the relict and sone of the second mariadge shall pursue for exhibition of any papers quherin they can pretend to have any intrest They shall have ane ansuer and in this case they can pretend no intrest at all, for the estates of Kinfauns haveing come by ane heritrix the sone of the second marriage can never have ane intrest in the Same Seing ther is not only a sone of the first marriage Bot Lykewayes a daughter, and that the estate is never to goe to the sone of the second marriage Bot failling of the Childrein of the first Marriadge, The estate is to goe to the deceast Sir William Blair of Kinfauns his airs quhatsomever, So that in no event the sone of the second marriage can have right to the samen, And Therfore neither the relict nor the sone of the second marriage Ought to be allowed to have inspectione of the writtes and Chartor Chist, Seing Phinhaven has now exped his tutory, And he as tutor has the only intrest as is appointed by the act of Parliament to make Inventar of all the writtes And to have the Custodie of the Chartor Chist and is to be answerable to his pupill And Therfor Humbly Craveing the saids Lords would be humbly pleased to take the premisses to their Consideratione And not only to refuse the desyre of the relict and her sone there petition, Bot Lykewayes to Rescind the former deliverance of Councill allowing the sone of the second mariadge and his tutors to be present at the inventarie of the deceast Kinfauns his writtes and Chartor Chist It being a great prejudice to the pupill that any persone should have inspectione who have no intrest as the said other petitione also bears The Lords of their Majesties Privy Councill haveing heard the above petitione given in to them be the above Ladie Kinfauns and her sone with the said other petitione given by way of answer for the Laird of Kinfauns and his tutors They Remitt both petitiones to the Lords of Sesion, And Recomends to them to give such orders and determinationes therin as they shall find Just, and that also sumarly and speedily as can be according to Law.
Edinburgh the fourtein day of Jully Jaj vjc nyntie two years
D1692/7/13
Act
Act and Remit The Lady Kinfaunes and her Sone and the Laird of Kinfauns and his tutor
Anent the two severall petitiones given and presented to the Lords of their majesties privy Councill The one therof at the instance of John Carnegie sone of the second mariadge of the deceast Alexander Carneige of Kinfauns Margrat Nairne relict of the said Alexander Carnegie for her self and as tutor to her said sone and his remanent tutors Shewing That quher the petitioners haveing formerly applyed to the saids Lords representing the intrest they hade to see the defuncts papers Inventared The saids Lords Did allow the tutors of the Childrein of both mariadges to be present at the inventaring of the defuncts writtes, And appoynted the tutors of the Childrein of aither Mariadges to make intimation hinc inde of the tyme of Inventaring and accordingly the petitioner did intimat the saids Lords act, Bot In respect the former act did not Clearly authorize the petitioner to inspect or Inventar by themselves, And that Phinhaven the tutor dative of the sone of the first mariadge hath both lately exped his tutory The petitioners doe againe beg libertie to lay before the saids Lords the grounds upon which they clame ane intrest to see, And In Respect the defuncts writtes and also his haill moveables, And farder intreat that the saids Lords would render the ordinance effectuall and authorize the petitioner at the sight of any Judge ordinary to have Inspection, If Phinhaven Should ommitt to make Inventars according to law for the reasones following viz Primo The petitioner the sone of the second mariadge is a Creditor in five hundred pund sterling his mothers contract, And the petitioner the relict is Creditor by the same Contract in ane lifrent annuitie of two Thousand five Hundred merks, And they hade reason to beleive that the defunct hade done some speciall deed in their favors, And allocat ane certaine fond for Implement of the forsaid provisiones, Secundo the sone of the second mariadge has the right of successione faillieing the only sone of the first And as the law for the securitie of the intrest of minors hade appointed Inventars to be Judicially made to the effect that the Condition of the estate might be publictly knowen to every persone interessted, Much more hath the nixt air ane speciall intrest to see that these Inventars be fairly made, The Raither because the Estate of Kinfauns came by the defuncts first Lady, hath some specialities as to the succession therin faillieng airs male of that marriadge which the petitioner Ought to see and know Tertio the petitioner the relict is executrix Creditrix etc firmed and hath confirmed the annualrents of the severall heretaball bonds lying by the defunct, and therby is concerned to see these bonds, Quarto the greatest part of the defuncts estate doeth consist in bonds and rights upon the Earle of Northesks estate, and Phinhaven being the nixt and Immediat air to this present Earle of Northesk, If the Earle should happen to decease without airs Phinhaven the tutor would succeid and become debitor and tutor to the Creditor, And Therfore It was more reasonable that a very speciall and particular Inventar should be made of these writtes, both for securitie of the pupill if he live and of the airs of the second marriadge In caice of his decease Quinto seing the law does appoint tutors to make Inventars of the defuncts wholl means It was necessary that the saids Lords should Limitt a particular tyme betwixt and which these inventars should be made to the petitioners of all dyets of inspectione of the writtes or other moveables that they might be present with Certification to Phinhaven if he faillied that the saids Lords would authorize the petitioners to have inspection of the saids writtes, and that he might Inventar the moveables at any tyme after the said dyet at the sight of any Judge ordinary, With power to the said Judge ordinary to make patent the doors of the house Erroll and of the severall Coffers, Trunks, Cabinetts or others, wher the papers or other moveables Lye And Therfore Humbly Craveing the saids Lords to prefixx a certaine dyet to Phinhaven the tutor of the first mariadge for making inventars of the defuncts writtes and estate heretaball or moveable And appoint Phinhaven to make intimatione to the petitioners of the severall dyets that he is to have inspectione in order to inventaring, And Discharge his inspectione untill he should make the forsaid intimatione to them, As also to Discharge his midleing and intromission as tutor, untill the forsaid inventars be made Conforme to the act of Parliament, And in caice of the tutors faillieing to Inspect and Compleit the forsaid Inventars betwixt and the forsaid dyet, That the Lords would authorize the petitioners to have inspection of the forsaid writtes, And to have such of the said writtes as are conceaved in their favors delivered up to them upon Inventar and recept And also that they might have access to inventar the moveaballs in order to confirmatione, And Lykewayes that the petitioner the relicts body Cloathes and parapharnalia that should be found amongst the defuncts moveables might be Delivered up to her upon recept, And that at the sight of any of the saids Lords number or any of the Lords of session or other Judge ordinary, with power to the saids Judges to make open doors of the house of Erroll and other places, And of the severall trunks Coffers, &c: wher the defuncts wrytes and moveables Lye as the said petitione bears And the other of the saids petitiones by way of answer to the forsaid petitione at the instance of Alexander Blair of Kinfauns and James Carnegie of Phinhaven his tutor Shewing That quheras Margaret Nairn relict of the deceast Alexander Carnegie of Kinfauns and John Carnegie his Sone and his tutors haveing given in a Petition to the saids Lords Representing that the relict being Creditor to her husband for the soume of Two thousand five hundred merks of Joyntur and her sone for five hundred punds sterling for his provision, haveing formerly Applyed to the saids Lords, That they might have access to have inspectione of the Laird of Kinfauns his writtes at the makeing of the inventars by the tutor of the petitioner the sone and air of the first mariage and might have such papers delivered to them as should be found to belong to them And that the saids Lords therupon hade allowed the sone of the second marriage to be present at the inventaring of the defuncts papers and appointing the respective tutors to make intimatione to others hic inde of the tyme of Inventaring the writtes and Charter Chist, And that when the former petition was presented James Carnegie of Phinhaven haveing appeared readie to exped a tutorie dative bot that since that tyme The Lords of exchequer did stop the expeding of the tutorrie before he should find better Caution then what was offered And that seing the tutors nominat to the sone of the second mariadge have accepted of the office of tutorie, And that they are readie to make inventars of the defuncts writtes Therfore Craves that the Charter Chist and haill writtes might be delivered and put in the hands of the shirreff depute of Pearth or Comissasrs of St Androwes, and to allow the relict and sone of the second mariage and his tutors to have inspectione therof, and that such wrytes as belongs to them might be delivered to them, As also to ordaine that the seallings and sequestrationes of all trunks Cloathes and other things belonging to the relict and sone of the second marriage to be taken off, That the samen may be delivered to them, And the saids Lords haveing Supperceided to give answer to the said petition Befor Phinhaven should be allowed to see and answer the samen, And now it was Humbly represented for the said Alexander Blair of Kinfauns Sone and air of the first mariage and Phinhaven his tutor That the desyre of the forsaid petition might not be granted and the forsaid deliverance of Councill upon the petition given in be the relict and sone of the second marriadge, allowing him and his tutors to be present at the inventaring of the defuncts papers ought to be rescinded Because when the forsaid deliverance was obtained It was parte in audita, And against the sone as air of the first marraige ane pupill and infant indefencles he haveing then no tutor to act or doe for him or manage his affairs Bot now Phinhaven haveing exped his tutory, he alledges that no such deliverance of Councill could have past if the pupill had then given his defences, Because all that the relect and sone of the first marriage can pretend to is only that they are Creditors to the deceast Kinfauns be the Ladies Contract of Marraige, And it is a Certaine principall in law, That Creditors as simple personall Creditors have no intresses neither to Crave exhibitione of the debitors Charter Chist for if that ware allowed then every Creditor might Crave exhibition of their debitors Chartor chist and propale the samen Which was never allowed to any person as a Simple Creditor, And seing the relict and sone of the second marriage has no other intrest Bot as pretended Creditors, They ought not not to be allowed to be present at the Sighting and inventaring of the defuncts Chartor chist And this being properly a Civill action, It is not competent to the Lords of privy Councill, Bot only to the Lords of session, And when the relict and sone of the second mariadge shall pursue for exhibition of any papers quherin they can pretend to have any intrest They shall have ane ansuer and in this case they can pretend no intrest at all, for the estates of Kinfauns haveing come by ane heritrix the sone of the second marriage can never have ane intrest in the Same Seing ther is not only a sone of the first marriage Bot Lykewayes a daughter, and that the estate is never to goe to the sone of the second marriage Bot failling of the Childrein of the first Marriadge, The estate is to goe to the deceast Sir William Blair of Kinfauns his airs quhatsomever, So that in no event the sone of the second marriage can have right to the samen, And Therfore neither the relict nor the sone of the second marriage Ought to be allowed to have inspectione of the writtes and Chartor Chist, Seing Phinhaven has now exped his tutory, And he as tutor has the only intrest as is appointed by the act of Parliament to make Inventar of all the writtes And to have the Custodie of the Chartor Chist and is to be answerable to his pupill And Therfor Humbly Craveing the saids Lords would be humbly pleased to take the premisses to their Consideratione And not only to refuse the desyre of the relict and her sone there petition, Bot Lykewayes to Rescind the former deliverance of Councill allowing the sone of the second mariadge and his tutors to be present at the inventarie of the deceast Kinfauns his writtes and Chartor Chist It being a great prejudice to the pupill that any persone should have inspectione who have no intrest as the said other petitione also bears The Lords of their Majesties Privy Councill haveing heard the above petitione given in to them be the above Ladie Kinfauns and her sone with the said other petitione given by way of answer for the Laird of Kinfauns and his tutors They Remitt both petitiones to the Lords of Sesion, And Recomends to them to give such orders and determinationes therin as they shall find Just, and that also sumarly and speedily as can be according to Law.
