Scottish Court of Session Decisions

Subject_1 COURTESY.

Forbes
v.
E Marshall.

Date: 15 July 1631
Case No. No 2.

The only daughter of the proprietor of an entailed estate, which went to heirs-male, obtain from the heirs-male and provision heritably secured. Agitated but not decided, wheter the courtesy took place.

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There was an action, Forbes contra E. Marshall, disputed before the Lords. The case thereof was this; Forbes had married the only daughter, and only bairn of the Laird of Troup, whose lands were tailzied to the Earl of Marshall, failzieing of heirs-male of his own body. After the father's decease, the Earl Marshell contracts with the said daughter, and obliges him to provide her to 10,000 merks, by heritable security, in contentation of all right she might claim; after which contract, she being married on this Forbes, and there being a bairn gotten betwixt them living, thereafter both the mother and bairn dies; after whose decease. Forbes the husband claiming the liferent of this 10,000 merks by the right of curiality; and the Earl Marshall defending, that the curiality could not have place in this case, where the wife was not successor to her predecessor, viz. her father, and where she was not infeft in lands wherein he died infeft; but this was a conquest, or such a purchase, wherein curiality had no place, being an acquisition made by the woman's self. And the husband replying, That this provision came to her in place of the lands, wherein her father was infeft; so that it was of the same nature as if she had succeeded to her father. This was not decided, because twelve hours hindered the decision thereof. But many of the Lords thought that curiality had no place in this case.

Act. Stuart & Baird. Alt. Advocatus & Nicolson. Clerk, Hay. Durie, p. 597.