INFORMATION For Sir THOMAS NICOLSON of TILLICUTRIE, AGAINST. The Co-heirs of Carnock, and their Husbands.
SIR Thomas Nicolson of Carnock, having a design to preserve the memory of his Family, That failzing Heirs Males of his Body, his Estate should go to his other Heirs Male. He by a Minute of Contract of Marriage, betwixt him and Lady Margaret Livingstoun his Lady, in the year 1648. Is obleidged, That the Heirs Male procreat of his Body, should succeed to all Lands and Summs of Money, which he then had pertaining to him, or which he should thereafter acquire in his Ladys Lifetime; And for the better provision of the Heirs Female that should be procreat in marriage, failzing of Heirs male of the Marriage. He obleidges his Heirs Male to pay to his saids Heirs Female, certain Summs of Money for their Portions, to be divided amongst them in manner therein mentioned, how soon they should attain to such an Age, during which time he obleidges himself and his Heirs Male to entertain the said Daughters in Bed, Board, and other necessarys, according to their Quality, and obliedges his Heirs Male to warrand the Lands provided to his Lady in Liferent, to be free of all Inconveniencies whatsoever; And oblidges his Lady to be comptable, and pay to his Heirs Male what the Lands should pay, and be of more worth than 4000 Merks yearly, and that the Minute should be extended in ample Form, by Advice of Men of Judgement.
There being a Son and three Daughters of that Marriage, Viz. Sir Thomas, Helen, Isobel, and Margaret Nicolsons, and Sir Thomas having only one Son, who thereafter came to be Lord Neaper; And he having dyed young, without Children, the said Helen Isobel and Margaret Nicolsons, his Aunts, pretending that the Estate did belong to Heirs whatsoever, & they being served Heirs of Line to Sir Tho: who was Lord Naper, and the said Daughters, and Greenock M [...]rum, and Ballancreif the Husbands, having raised a declarator against Sir Thomas Nicolson of Tillicoultrey the Heir Male, for declaring that they had Right ro the Estate, and that there was no clause in the foresaid Minute, providing the Estate to the Heirs Male, Failzing the Heirs Male of Sir Thomas his own Body: And if any such thing were imported by the said Minute, It was void and null, as being done by a Minor, having Curators and without their consent; And Tilicoultrie being served general Heir Male to the Lord Neaper, he raised a Reduction, Improbation, and Declarator against the saids three Sisters and their Husbands for reducing of the Rights, and declaring he had the only Right to the said Estate as Heir Male, which Declarator was founded upon the foresaid Minute of Contract of Marriage, and an Bond of provision granted be Sir Thomas to his saids three Daughters for their portions, and repeated the same be way of defence, and the Lords of Session by the pretended Decreet, alledged to be obtained in the year [...] found and declared that there was no alteration or change of the successors, or any oblidgement for alteration or change of succession, and former settlement of the Estate to Heirs whatsoever, from the saids Heirs whatsoever to the Heirs Male, either exprest or imported by the foresaid Minute of Contract, or by the Bond of provision granted be Sir Thomas, to his saids Daughters, and declared, That Sir Thomas was Minor the time of entering into the Contract, and that without consent of his Curators, and so was null; By which Tillicultrey conceaving himself to be extreamly laesed. He conform to the Liberty granted to him be the claim of Right, protested for Remed of Law to the King and Parliament, and he now insists for reducing of the said Decreet before the Parliament, upon these Reasons;
First, That the said Decreet is ipso jure null, as not being recorded, nor to be found in the Book of Registers, [...] 2do. Albeit it had been recorded, Yet the said pretended Decreet ought to be reduced, because upon the Matter, it was but in absence; For albeit it bears Tillicultrey to be Compearing, yet the pretended Debate in the Decreet was advised, and Interloqutor past in Absence, as appears by a Petition given by the Sisters, upon which there is an Interloqutor, Declaring, That the Lords would advise the Process, albeit the Defender [Page 2] were absent, and accordingly the Process was advised, and Interloqutor upon the Import of the Minute of Contract was past at that time when the Defender was absent, and no Informations given for him in Relation to the samen.
3tio. The Lords of Session Repelled these most Just defences, which were alledged for Tilicultrey. First, That the foresaid Minute of Contract did import a Tailzie in favours of the Heirs Male, Failzing Heirs Male of his own Body, which was clearly evinced from these grounds. First. That by the Minute he is oblidged to Infeft his Lady to be holden of his Heirs Male in the general. 2do. He oblidges himself, his Heirs Male, Tailzie and provision to warand his Ladies Liferent. 3tio. He oblidges his Lady to be Comptable to his Heirs Male for what the Lands shall be more worth then 4000 Merks of Annuitie, to which she was provided. 3to. He oblidges himself, his Heirs Male, and Successors whatsoever, Failzing of Heirs Male of the Marriage to pay the provisions condiscended upon to the Heirs Male of the Marriage, when they come to a certain age. 5to. He oblidges his Heir Male and Assignies whatsoever, to entertain the Daughters till they came to that Age, By all which the Heirs Male are actually secured, and the Heirs Famale excluded, for if it had been designed that they should have succeeded, why should Portions have been provided to them? And if it had not been designed that the Estate should not go to the Heirs Male, why should they have been oblidged to ay the Daughters Portions, and to warrand the Ladies Joynture, and the Lady to be comptable to them for the Superplus yearly Rent more then payed her Annuitie? 6to. Sir Thomas was so firmly resolved that the Estate should go to his Heirs Male, that in any years thereafter when he was above forty years of Age, he gave a Bond of provision to his saids three Daughters, by which he did appoint his son, and those who should happen to succeed to his Estate, that they should fulfill the saids Bonds of Provision, as they would expect the Lords Blessing, and recommends to the Lords of Session to see the saids Bonds fulfilled. 7mo. As a convincing demonstration, that all people did Look upon the Estate to be provided to the Heirs Male be the foresaid Contract. Failzing Heirs Male of Sir Thomas own Body, the said Sir Thomas, the son Brother to the saids three Sisters▪ with consent of his Curators and Friends both on the Father and Mother side, did after his Father Decease gave bonds to his sisters by which he oblidged himself and his Heirs Male, to pay them their provisions, appointed them be the father and the saids sisters were Married, as having right to these provisions without having the least expectation or hope of succession to the estate: And the husbands were satisfied with these portions, and provided their Ladies with suitable jointures accordingly. 8vo. The Minute of Contract bearing an express oblidgement, that the samen should be extended in ample form by advice of men of Judgement. Now is it not obvious to comon reason, that if any Lawyers or Men of Judgement had been advised at that time in relation to the extending of that minute, that they would have advised as the true meaning of the minute, that the estate should be provided to the other Heirs Male failzing the Heirs Male of Sir Thomas his own Body, as being not only Sir Thomas his interest so to do, as it is the Interest of all persons, who designes to preserve the memory of their familie; But likewise as being founded upon the express words and meaning of the Contract.
4to. As it is most manifest and clear as the Suns light in the Mid-day, that by the foresaid minute of Contract, It was Sir Thomas his meaning that the estate should go to his other Heirs Male failzing Heirs Male of his own body, and that all persons understood it so, And that therefore Tillicoultries defences founded upon the said Contract, and other writes produced should not have been repelled. So, Likewise, These Answers to the pursuers pretended reason of Minority upon which they quarrelled the said Contract were most Unanswerably relevent. For first, There is nothing produced to Instruct Sir Thomas his age, but, an extract of his Baptism, which is not sufficient probation, & even conform to rhat declaration, it appears that Sir Thomas was majoritate; proximus & within very few moneths of his Majority, 2do. If Sir Thomas had been Minor at that time; it is not to be Imagined he had Curators otherwayes they would have been subscriving, Especially so solemn a deed as a Contract of Marriage. 3tio. If Sir Thomas had had Curators, It is not to be imagined that his Lady and her Friends would have entred in that Contract without their consent, or at least would thereafter have procured their Approbation, and they certainly have gotten the Contract corroborat by a separat deed. 4to. The pretended [Page 3] Extract of the Act of Curatory by the Commissars of Edinburgh produced, is ipso jure null, as being without any Warrant, there being no warrant for it amongst the Records of the Court; And it is a Rule in our Law and clear by our decisions, that Extracts of Acts of Curatory before inferior Courts makes no faith, unless the subscrived warrand thereof by the Partie be produced, & particularly in the case of Porterfield contra Hamiltoun in the year [...] 5to. Albeit Sir Thomas had been Minor, and had Curators the time when he entered into the said Contract, both which were denyed, yet the Contract could not be questioned upon that Ground at the instance of the Heirs of Lyne; Because there is two things to be proven in order to the Annualling of deeds done by a Minor. viz. That he was Minor, and that he was lesed, so that every deed done by a Minor is not null unless Lesion be instructed, as is clear from the Edict of the Pretor in the Civil Law: Tit: de Minoribus quod cum Minore gestum esse dicetur, utique res erat anima advertam; As if he had said that if every Deed done by a Minor is not to be quarrelled upon the ground of Minoritie, but the Pretor will consider what deeds shall be annulled and what not, and if there be no Lesion in the case, the deed cannot be questioned: Leg; 5; Cod: De integrum Restitut: Minor: Minoribus in integrum Restitutio competit in quibus se captus probare possunt, And Leg: 9: ff: De jure jurando: par: 4: Sed plerumque ipsum Praetorem debere cognoscere, an Captus sit Minor & sic in integrum restituere nec enim, utique qui Minor est statim & circumscriptum se docuit. And there is an excellent Reason given for it, Leg, 24 par: 1. ff. minor de non semper autem ea quae cum minoribus geruntur rescindenda sunt ne magno incommodo hujus aetatis homines, adficiantur, nemine cum his contrahente, & quodammodo commercio eis interdicetur, itaque nisi aut manifesta circumscriptio sit, aut tam negligenter in ea causa versati sunt, Praetor interponere se non debet; And that Sir Thomas was not lesed in providing the estate to his other Heirs Male failzing of Heirs Male of his own body by the foresaid Contract is evinced from these reasons. first, That it was a just and rational Act for the preserving of the memory of his familie, and when a minor does just and rational Acts they cannot be questioned neither by him nor his Successors, which is not only clear from the foresaid texts in the Civil Law, But our own Law, and was so found by a solemn Decision in January 1668 Nicolson contra Nicolsons. 2do. When a Minor does such a Deed which is ordinarly in use to be done, by most prudent and provident men, and allowed be the Law, He cannot be said to be Lesed nor can the Deed be quarrelled, either by himself or his Hers si minor jure communi usus sit non potest, videri circumventus, Leg. Ult: Cod: de inintegrum restitut: Minor: And Leg: 116. De regul: jur: non capitur qui jus publicum sequitur. But so it is, That a Minors Tailzing his Estate to his other Heirs Male failzing of Heirs Male of his own Body, is such a Deed that is ordinarly in use to be done by the most wise and prudent men, for the preserving of the memory of their Names and Familys, and is allowed be the Laws of the Nation, and so cannot be quarrelled upon the account of Lesion. 3tio. What is understood to be Lesion in the Case of Deeds done be a Minor, upon which he and his Successors may be restored, is excellently well defyned by the Law 44. ff, de Minor, Non omnia quae minores annis viginti quinque gerunt, irrita sunt, sed ea tantum, quae causa cognita, ejusmodi deprevensi sunt; ut si ab alijs circumventi, vel suae fecilitate decepti aut quod habuerunt, amiserunt; aut se oneri quod non suscipere licuit, obligaverunt. By which it is evident, That in these five cases only a Minor can be said to be lesed by a Deed, First, If he be fraudulently circumveened. 2do. If through weakness of Judgement he be deceived, 3tio, If thereby he looses that which he had and diminishes his Estate. 4to. That he omitt to acquire some Emoluments that he might have gotten. 5to. That he subject himself to some burden, that he ought not to have undertaken; But so it is, that he tailzing of his Estate to his Heirs Male can fall under none of these cases, and therefore cannot be quarrelled upon lesion, And 4to. That which ought to have very great weight & clear the whole affair is the Bond of provision granted be Sir Thomas to his Daughters the Pursuers, by which he oblidges his Son, and those who should succeed to him in his Estate to pay their Portions, which clearly demonstrates that in case of Decease of his Son, there was others to succeed to him in his Estate then his Daughters which could be understood of none but his other Heirs Male, seeing the Bond could not be consistent with it self, if he had meaned that the Daughters should be lyable for the Portions, seeing they could not be both the persons oblidged to pay the Portions, and the persons who were to receive the same; And therefore that clause in the Bond relating [Page 4] to these that should succeed to his Estate, must necessarly be understood of his other Heirs Male, and to shew his enixa voluntas, that it should be so, he requires them by a solemn obtestation, that they would fulfil the saids Bonds as they expected GODS Blessing, and there is so much the greater obligation lying upon the Judges to see his will observed, seeing by the same Bond he recommends to the Judges, to see it fulfilled. Now it can never be sincerely fulfilled, unless it be strictly observed according to the Fathers true meaning, which was, that his Familie and Estate should be preserved in his Heirs Male, and his Daughters should have their Portions, So that Tillicultrie being the true and leaneal Heir Male to that great and eminent Lawyer, Sir Thomas Nicolson, who was an Honour to his Nation, whose Name and Familie may be preserved in Tillicultries person, he being his Grand Child, and the fifth Sir Thomas Nicolson of that Familie; whereas the name & Familie would absolutely extinguish & perrish, if the Estate go to the Daughters. It is most agreeable to Law, Reason & Equity, that the Estate should belong to him, and his Right to the samen declared. 6to The Lords by their Interloqutor the 22 January 1691; Declares that they have no regard to the defence founded upon the death of the Curators sine quibus non the time of the Minute by which the Act of Curatorie, became void and null and so it was in the case as if Sir Thomas had no Curators, In respect as the Interloqutors bears, it was Nottour that two of them was then alive, whereas the pretendit notarietie of a thing that was alledged to be extant many years before, could be no ground of an Interloquitor unless the samen had been instructed by a Legal probation. 7mo. By the Interloquitor the 9th January, 1691 the Lords finds that there is no necessity for aducing any furder probation by witness of Sir Thomas minoritie, the matter being so ancient, that witnesses could not be found to depone there anent, which clearly makes appear that Lords were convinced there was no sufficient probaition aduced by the Heirs of Lyne, of Sir Thomas his minority, the time he entered into the minute of Contract of Marriage, and that being laid down as a ground, It was incongruous to find that there was no necessity for aducing of farder probation upon the accompt that the matter was ancient for the antiquity of the thing doeth not free any partie from a Legal probation: And therefore the foresaid Decreet and Interloquitor▪ upon which the samen proceeded, ought to be reduced, and Tillicultries Right to the Estate ought to be declared for the reasons above mentioned, especially seeing if need were, it can be made appear per membra curiae, that when the first Interloquitor was past, which is the Foundation of the Decreet, the Lords were much devided in the matter; and the Votes being near equal, it was only casten and determined against Tillicultrie by one Vote; And seeing there was so many of the Lords against it, and these of the most eminent Lawyers upon the Bench, the Intetloquitors, which are the grounds of the said Decreet ought to have the less weight with the Parliament.
IT was answered for the Co-Heirs and their Husbands, 1mo. The foresaid Clause in the minute of Contract, in Relation to the Heirs Male cannot be understood to be Equivalent to a Tailzie of the Estate to the Heirs Male, seeing in several other clauses, the Heirs Male are not mentioned solly; But the Heirs Male and Successors which may comprehend the Heirs of Lyne; And as to that Clause, in Relation to the payment to the Daughters of their portions at a certain Age, and that his Heirs Male in the mean time should entertain them, must be properly understood of the Heirs Male of an other Marriage; And the Band of provision granted be Sir Thomas to the Purluer his Daughters, after his Majoritie could be no evidence of his design of providing the Estate to his other Heirs Male, because he had a Son than alive; And Tailzies cannot be made by Inferences a [...]d Conj [...]ctures, but by express deeds: And that Clause by which Sir Thomas was oblieged to extend the minute, by advice of Men of Law and Judgement, cannot import that the minute was to be extended in Favours of his other Heirs Male, but only that it should be more fully extended in more ample Form, keeping the same Terms.
2do. Albeit the said Minute should import a Tailzie to the other Heirs Male as it does not; Yet is is ipso Jure null, as being entered into by a Minor having Curators, and without their Consent, and such deeds done by Minors, are Null, albeit there be no Lesion in the Case, and being ipso jure null by our Law, and the common Law, Leg: 3. Cod: de in integrum restitut Minor such deeds needs not be revocked or Reduced intra Annos utiles, and the Laws Cited for Tillicultrie are only in the Case of deeds done by Minors having Curators, and the [Page 5] Estate by the Ancient Rights being provided to the Heirs whatsomever; It was a kind of Alienation to provide it to the Heirs Male, and a Minor cannot alienat, especially without consent of his Curators.
As to the first, It was Replyed for Tillicultrie. 1mo. That the Minute was opponed; And it evidently appears by the whole Tenor of it, that Sir Thomas designed to provide his Estate to the other Heirs Male, Failzing the Heirs Male of his own Body, and particularly from that Clause by which he oblidges his Heirs Male and Successors to pay the portions to the Heirs Female, and his Heirs Male whatsomevet, shall be oblidged to entertain the Heirs Female before their Portions were payable, which in no sense can admit of any other construction, but that the Estate was to go to the Heirs Male whatsomever, who were to pay the Daughters Portions, It being altogether inconsistent, that Clause could be understood of the Heirs whatsomever, seeing the Daughters could not be oblidged to pay the Portions to themselves. And it was frivolous to pretend, That the Heirs Male therein mentioned should be understood the Heirs Male of another Marriage, that being expresly contrare to the Clause in the Contract, which mentions Heirs Male whatsomever, and so must be understood of the Heirs Male in general, and not of the Heirs Male of another Marriage only: And if there were any Ambiguity or Doubtfulness in the Case, as there is not; Yet it is a principle in Law, That, Ex contextu verborum totius scripturae testamenti colii testatoris, voluntatem; That in case of a dubious clause in a Testament, or Disposition, the whole tenor of the Write is to be considered, and it evidently appears all along in this Minute, That as the Heirs male were obliged to perform the Provisions in the minute, so they were to enjoy his Estate.
2do. The Bond of Provision in favours of the Daughters is a clear Confirmation of Sir Thomas his continuing in his design to provide the Estate to his other Heirs Male albeit he had a Son, Because he does not oblige the Heirs male of the marriage to pay the Portions, but he obliges his Heirs aad Successors in his Lands and Estate in the general, which clearly imports that the Daughters were not the persons to succeed, but that his other Heirs Male by the foresaid Contract were to succeed, and that they were to pay the Portions.
3tio. By the common Law and Laws of other Nations, Tacite Obligationes are als binding, and Rights may be conveyed thereby, as well as by express Dispositions, as is clear from the Lawyers that has written De tacitis & ambiguis contractibus, & de conjecturis ultimarum voluntatum, And this may be farder cleared from many instances out of our own Law & practice; & particularly if a man take a Woodset to himself, & his Heirs of Tailzse, & thereafter acquire the Reversion to his Heirs indefinitly, though in Law this Reversion should descend to the Heirs whatsomever; Yet the Lords of Session by a just interpretation, make it descend to the Heirs of Tailzie, because it is not reasonable, to think that the Acquirer would have given the Wodset to the one, and the Reversion to the other Heirs; And as a Wife being Herettix of a Woodset, and thereafter she & her Husband acquires the Reversion to them and their Heirs, this Reversion will not go to the Heirs whatsomever of the Husband, according to the Ordinary Legal Succession, but will descend to the Wifes Heirs, who is Heretrix of the Lands, and thousand instances more of that nature may be given whereby conjectures, and necessary inferences; The Rights of the Lands may be conveyed, and it was so found by a solemn decision of the Lords of Session, in the case of [...] where a Father having three sons, and the eldest being dumb, he disponed the Estate to a second son and his Heirs, which Failzing to return to the Fathers Heirs, allowing the eldest son an Annuity yearly, during his lifetime; only & the second Son having dyed without Heirs Male of his own Body, albeit be the ordinary course of Succession, the Estate should have returned to the eldest Son, who albeit he was Dumb, he might have Married, and had Heirs of his own Body; Yet seeing it appears to be the designe of the Father, That the eldest Son should be excluded, the Lords from the Fathers presumed Will, fand that the Estate should descend to the third Son, and there is much more in the foresaid Minute of Contract, which imports a Tailzie to the Heirs Male; Then there was in the foresaid case to exclude the Eldest Son and his Succession.
4to. By the Ancient Feudal Law, all Lands descend only to the Heirs Male, and the Heirs Female did not succeed, So that when any doubtfulness arises, in relation to a Tailzie; the presumprion lyes alwayes for the Heirs Male, according to the Ancient Feudal Law, and when there arises any doubt anent what was the Intention, of a party granting of a Right of his Lands, That is alwayes to be understood to be the partys meaning, that tends to the preservation of his Family, and continuing the Estate in his Name, as is clear from Mantica de conject: ultimar: volunt: lib: 6. tit: 15. Who treats fully upon that Subject, and is positive, That expressio generis maseulini facit presumi mentem testatoris talem esse, ut voluerit bona in agnatione conservare, and lib: 7. tit: 1. num: 44. Sed etsi in dubio, sit pronunciandum non subesse fidei commissum quoties tamen relictum, est favore conservandi agnationis procul dubio censetur favorabile, & pro eo tanquam benignior sententia ferenda est; Which is just the Case in Question, and determined in favours of Tillicoultrey, by the most Eminent Lawyers that ever wrote upon that Subject.
[Page 6]5to. The minute being to be extended according to the Advice of men of Law and Jugdement; It is evident to all Mens Conviction that reads the minute, That Sir Thomas designed the Estate to go to his other Heirs male, failzing of the Heirs Male of his own Body: And there is no Lawyer or Writer, but would have extended it after that manner. And it is a principle in Law, that ubi abreviatura extendenda est secundum sensum sapientis, It ought to be extended according to these Rules. First, It is considered what it appears to have been the meaning of the Party, for the design and meaning of Parties is, regula regulans in all Contracts. 2do. That which was fittest for the Interest of the Partie, and that which probably himself would have resolved, if the Question had been put to him. 3tio. It is considered, what the wisest men of the place where the Contracter lived, would do in their own Affairs. And according to all these Rules, It cannot be denyed but that this minute should be extended in favours of the Heirs male, for certainly it was fittest for the Interest of the Contracter, to have his Name and Memory continued; And no man would ever have designed his Estate to be divided amongst his Daughters, when he had a Brother, without appointing one of the Daughters to represent him, by succeeding without division, and assuming the Name and Arms, as is ordinarly done in such Cases, where the Estate is designed to go to the Heirs whatsomever.
2do. As to the other point, in relation to the Minority; It is Replyed, 1mo. Adhering to the former Objections, That the Minority was not sufficiently proven, & that the Warrand of the Act of Curatory is not produced, and that the Discharge and Factory alleadged upon, granted be Sir Thomas, with consent of some of his Curators, cannot be sustained to adminiculate the samen, Because the said Factory and Discharge, is only subscrived be some of his Curators, Whereas there not being a quorum; named in the Act of Curatory, by decease of any one of them, at least of the Major Part, the Curatory became null; And it will not be made appear that the major Part were alive the time of the entry into the said Minute. But Esto, That Sir Thomas had been Minor, and that the major part of his Curators had been then alive, yet the Contract cannot be questioned upon minority, seeing there was no Leison in the Case, and the forecited Laws are general and positive, That no Deed done be a minor, can be quarrelled upon minority, unless there be Leison, and that without distinction whether the Deed done be a minor, be with, or without consent of his Curators, and, non est distinguendum ubi lex non distinguit. And this is farder cleared from the Common Law, Leg: 101. ff. De verbor: obligat: puberes sine Curatoribus suis possunt ex stipulatu obligari; So that if minors without consent of their Curators, can he obleidged by formal Stipulations, much more by Contracts when they are not Lesed.
2do. If a Deed done by Minor having Curators, without their consent, could be quarrelled upon that Ground: Yet if it be not quarrelled by the minor, intra annos utiles, before he be twenty five years of Age, it is understood in Law to be a valied Deed, and cannot be thereafter questioned. And as to the Lex 3. God: de in integrum restitut: minor: From which it is alleadged to be inferred, That be the Common Law, and our Law, Deeds done by a Minor having Curators without their consent, are so null, that the minor needs not be restored against them. It is answered, First, That the said Law cannot take place in this Case, because it is expresly in relation to Contracts, by which the minors Goods are alienate, and an Alienation presupposes Lesion; But in this Case there is no Alienation; For by the foresaid Tailzie, Sir Thomas did not alienat his Estate to them, But being to his Heirs Male, was for the preservation of his Name & Family. And it is the Opinion of all Lawyers that has written upon that Law, that Deeds done by Minors having Curators without their consent, cannot be quarrelled, nisi conditionem suam feceret deteriorem, That he put himself in a worse condition by the Deed, but it cannot be said, That the Tailzing of his Estate to his Heirs Male, by which his Name and Family may be preserved, and failzing of them to his Heirs whatsomever, to have made his Estate in a worse condition, but rather in a better, & was a just and rational deed which ordinarly most prudent Men uses to do, which is not the case of the above cited; But the Lawyers that has written upon the samen, and particularlie that Eminent Lawer Mornacius upon the foresaid ninth Law of the Cod: de integram: restitut: Who is express that the meaning of the Law is, Si minor fecit quod quilibet diligens fecerit, And concludes his Observations upon that Law, that a Minor is not to be restored Si jure communi usus sit, id est eo jure quo & bene consulti Majores agere consueverunt. And it was the decision of a famous Court, that a Testament made be a furious person was sustained because it was rational; And it was the saying of Valerius Maximus, That it is more to be considered, quod scripsit quam quis scripsit, much more ought such a Deed as this be sustained, being done by a Minor who was majoritate proximus, and by a solemn Contract of Marriage, and by a person who was most prudent and provident in all his Affairs. 2do. Giving and not granting, that be the Civil Law, Deeds [Page 7] done be Minors having Curators without their consent were Null, albeit the Minor had not pursued to be restored against the samen in his own time, yet that was only but a subtility in the Civil Law, which be the custom of Nations are not now in use, such as the formaleties of Stipulations, and the solemnities of Testaments; The Law of Nations now considering the Justice of the Thing more than Formalities and Subtilities: And therefore it is the Opinion of Lawyers, That the said Lex 3. doth not now take place be the Law of Nations, And particularly, de Ferrier, in his Juris Prudens upon the Cod. and that Tittle, si Tutor vel Curator invertinerit, who is express, That by the Laws and Customs of France, Contracts entered into by Minors, having Curators, and without their consent are valide in Law, unless the Minor pursue to be restored again the samen in due time.
3tio. The Parliament may be pleased to consider that there is many Noble Families in the Nation, whose Right of Tailzie is founded upon Contracts of Marriages entered into by Minors, and if such Contracts as these should be quarrelled upon Minority; It might be a means to unhinge the settlemens of many Noblemen and Gentlemens Estates.
4to. As Tillicultry is well founded both in Law and Justice upon the Grounds and Reasons abovementioned, So he has all the Favour in the World on his side; For first, He is the undoubted Heir Male, and he having Right to the Estate, he preserves the Name and Memorie of the Familie, and he is content for the better preservation of the Estate, if it should be thought necessary that there shall be an Tailzie thereof with strict Clauses irritant, that hereafter it shal neither be in his power or his successors to put away that Estate; Nixt, he is als near of degree to the Comunis stipes, Viz. Sir Thomas Nicolson who was so Eminent a Lawyer, and who first acquired the Estate, as the Co-heirs are, and in pari casis, the Male should alwayes be preferred to the Female. 3tio. The Co-Heirs has already gotten their Portions, and was settled in Marriage with respect to their Portions they had, without regard to any expectation they could have of the Estate, and are aboundantly provided; whereas Tillicultrie the Heir Male is in a most necessitous condition, having nothing whereupon to live; & it were hard, that the Co-heirs should come in and carry away the whole Estate, and that Tillicultrie who is the Heir Male, and has so good Right to the Estate, and ought to represent the Familie should have nothing but be absolutely miserable; And albeit Tillicultrie conceives himself to be sufficiently secured both in point of Law, Justice and Favour; Yet to shew how ready he is to comply with any thing that is reasonable, He is content to make a Judicial Submission to the Parliament, providing the Co-Heirs will do the like; That his Grace his Majesties High Commissioner, and the Honourable Estates of Parliament may do in the matter as they shall think just and equitable, which if the Co-Heirs shall refuse, Then Tillicultrie humbly desires that the Parliament in advising the debate, may consider the points separatly, and to give distinct Interloquitors, first upon the import of the contract, and nixt upon the Minority: And if any difficulty remain, as to the declaring of Tillicultries Right to the Estate, as he conceives there will be none; He Humbly desires a hearing in plain Parliament upon the whole matter.