Futurition have not the least relation to sums due which are still in Preterito but they do only relate to the receipt of the Money So the Clause doth import that if sums then due should be received during the Marriage they were to be Imployed but it is altogether force against the natural construction to mention these words During the Marriage In the first Clause which can neither relate to the Receipt of the Money Because if that Money upon the Estate of Huntely should be received or secured though after the Dissolution of the Marriage the Pursuer would have a Liferent thereof by the Clause which she could not claim if the condition run In case during the Marriage the Money were rece ved Neither is it possible that the words During the Marriage can relate to sums due For Sums due during the Marriage is Nonsense Sums due being Preterite and during the Marriage being then Future unless for my Ladies Conveniency she be allowed to add a word or two to make the Sense as she would have it and that she should be permitted to Interpret the Clause in thir Terms viz Sums falling due or becoming due during the Marriage For without the Addition of these words or other of the like Import it is impossible in naâ—ure that ever theâ—e words 〈…〉 by any construction that can be forced upon the Clause as it stands And if such violence were put upon it then it would still disagree with what has been evidently communed viz That Huntleys Debt already due should be Liferented if received For if only sums falling or becoming due Thereafter were to be imployed then there were no Obligation as to these which were already due And it would be a wonderful streatch that could make the same words signify both Preterite and Future Secundo Suppose the words of the Clause should be strained as the Pursuer contends to an Obligment of Imploying all sums due during the Marriage yet it is not possible to extend the Importance of that Clause farther than an ordinary clause of Conquesce and consequently the Husbands Obligation would only be prestable with the burden of all rational Deeds For the Clause of Conquesce oblidges to bestow All sums of Money Conquest during the Marriage And the second Clause obliges as is pretended to Imploy All sums falling due during the Marriage to be received by the Defunct Which is all one Clause for all sums falling due during the Marriage that the Defunct could receive must be sums Conquest during the Marriage and consequently if the Obligment to imploy the Conquesce cannot secure the Pursuer from the burden of all rational Deeds neither can the Oblidgment of imploying sums falling due which is the same thing And it is not the variation of the Style or words that will evert the effect of such a train of Decisions nor is it possible that the Defunct or any reasonable man would have agreed to such an extravagant Clause whereby all his Fortune was then wholly over-burdened so he should have been Incapacitate for ever to render it in a better condition for himself or his Heirs For though in this Case there be eventually no Children of the Marriage which might probably have existed my Lady being then little past 40. And being as careful to provide for them as her self yet if they had existed the Defunct would have been Incapacitate that his eldest Son might succeed which in consequence would have drawn his Creditors upon him that he could not have had his person safe when they found that he could not apply one sixpence for their payment out of what he had or could acquire It was replyed that the Pursuers Lybel is most Relevant both upon the Conquest and subsequent Clause And albeit the Pursuer doth not alledge that any sums of Money Lands or Heretages Conquest during the Marriage are extant seing the Defunct did apply these sums acquired and falling due during the Marriage for payment of the Debts affecting the Estate and Lands of Collingtoun The Defunct being Locupletior factus by applying these sums for the Relief of his own Estate which by the Conrract ought to have been imployed for the Pusuers Lyferent use the Lady ought to have the benefit thereof and doth not claim any Lyferent of sums spent and consumed but where there is ane existing benefit inriching the Defunct she ought to have a lyfrent of the Lands releived to which she restricts her lybel and craves no more neither upon the first nor second Clause of the Contract 2. Conquesce in favours of Wives or Children is alwayes understood in so far as the Husband is richer at the Dissolution of the Marriage than he was at the time of the Contract And the defunct being richer in the value of the hail Lands redeemed my Lady ought to have the lyfrent thereof 3 Decisions in matters of Conquesce have varied according to the circumstances of the cases Debated and all of them have this notable difference from the Pursuers Case that in these Decisions the Relict had special suitable provisions and the Conquests were only adjected as general uncertaine Clauses upon which the Relicts did not depend But here there is no special provision except the House and Yeards of Collingtoun and all that was depended upon was the clause of Conquesce which was advised by my Lord Dirlingtoun and eminent Lawyers who thought fitter to take the defunct obliged in the termes of the Contract than to take a it cannot be imagined that so eminent a Lawyer would advise a clause that would be absolutely Elusory tho' the defunct made his fortune during the Marriage 4. There are also several Decisions which fortify the pursuers Case as particularely a decision Skeen contra Robertson 4 March 1624. where a band of Provision to a Daughter was found to be lyable to the Relicts lyfrent by her clause of Conquesce And in the same case the Husband having acquired right to a Salmond Fishing near Aberdeen which by the custom of the place could not be bruiked by a Woman yet the relict by her Conquesce was found to have utilem actionem against the heir for the value And in the case of the Countess of Dumfermting against her Son Lands being conquest originally in the name of the eldest Son the Countess was found to have right to Lyfrent these Lands tho' never in the Person of the Father The like _____ Where a Right originally acquired in the name of a second Son was also affected by the Relicts lyfrent upon a clause of Conquest 50 The Decisions adduced in the Case of Children provided to Conquesce import nothing because all Children doe represent the Defunct in so far as they have benefite by him whereas the Relicts are most favourable Creditors and the Decisions adduced in the case of Relicts are of no moment as that Lands conquesced or burdened with the Debts due expresly for the purchase thereof nothing being reckoned but with deduction
same albeit it was alledged that the price of the Lands was not payed but was resting the time of his Fathers decease and that the Son as representing him is lyable for the same And it is subjoin'd that the like Decision was done the 11 of Januar. 1632. The Lady Bonningtoun contra Hadden and the 27 of Jun. 1676 The Earl of Dumfermling contra the Earl of Callander where the Lords found that a general Clause of Conquesce did extend to what the Husband had acquyred during the Marriage more then what he had the time of the contract of Marriage with the burden of all his Debts contracted during the Marriage that was esteemed Conquesce which was free over and above the debt contracted during the Marriage By which it is evident that in so far as the Estate was meliorat and in a better condition the time of the dissolution of the Marriage than it was the time of the contract that was to be esteemed Conquesce and that no debts were to be deduced but these that were contracted during the Marriage And as to the Decisions adduced for the Lord Collingtoun the 26 of November 1629 Where the Lords found that Lands being acquired be the Husband from the Seller of the Lands and thereafter disponed in few again to the same seller for ane greater few duty than was contained in the sellers priors Rights The augmentation of the few duty be the Husband could not be repute ane Conquesce whereof the Relict might Claim a lyfrent as coming under the clause of Conquesce of the contract And in the case of James Wauchop contra the Laird of Niddrie in the year 1683 where the husband having right to the Lands prior to the Marriage and during the Marriage having acquired partial Rights were not found to fall under the clause of Conquesce It is answered that these Decisions doe not meet this case for as to that of the Lady Dumfermling against her Son It was in the case betwixt a Superiour and a Vassal where a Superior having pursued a Reduction against his Vassal and the Vassals rights being found null for want of Confirmation and the Superiour having given a new right to the Vassall for augmentation of the few-duty that was not found Conquesce In respect there was no new acquisition the Superior having right to the Lands before the Marriage and his right to the property of the few being only declared after the Marriage by reduceing of the Vassals right and therefore albeit the Superior gave a new right to the Vassal augmenting the few-duty That augmentation was not repute Conquesce to give the Relict the benefit of the lyfrent thereof And that this was the case of that Decision it is cleare by the Decision the last of June 1629. Betwixt the same Persons And as to the Case of Niddrie and his brother first the question there was betwixt the Heir of Line and the Heir of Conquesce of the second Marriage which does not meet in this case Next the partial rights acquired by the husband after the Marriage was found not to fall under the Clause of Conquesce in respect that the Husband had belonging to him of money and other estate of great value prior to the Marriage of which any sums of money he depursed after the Marriage in acquiring rights to the Lands was the true product and might be ascribed to the sums of money and other estate which belonged to him before the Marriage And as to the case of Cowan contra Young the 9th of February 1669 where a Father having given a bond of Provision of 400 pound to a Daughter of the first Marriage was sustained and found to affect the Heir of Conquesce of the Second Marriage And the 15 of July 1673 Robertson contra Robertson where the Lords found that a clause in a contract of Marriage providing the lyfrent of the conquesce to the Wife did not hinder the Husband to give competent provisions to the Children And Smith contra Muire 23 December 1668. Where it was found that such a clause did not prejudge Creditors but the Relict that intrometted with the moveables falling under the conquesce was found lyable for the Debt And in the case of Frazer contra Cumming the 8 of December 1687. Where the Lords found the Provision granted to the Children of the first Marriage was to be deduced out of the conquesce in prejudice of the Relicts lyfrent as also that his debts ought to be deduced and 11000 pound that he had reserved to himselfe be the contract of Marriage and the superplus only to be repute Conquesce It is answered that the case of Cowan Young being betwixt a Child of the first Marriage and the Heir of Conquesce in the second Marriage it did not meet the case of a lyfrenter next it was only but a small provision granted be a Father to his Child of the first Marriage whom be the Law of Nature he is oblidged to provide As also in that Case the Heir of the second Marriage had a special provision and something also of the Conquesce so that the Fathers granting a moderate provision to a Child of the first Marriage was not understood a defrauding of the Children of the second Marriage And the case of Robertson contra Robertson albeit the Lords found that such clauses could not exclude competent provisions to the Children of the same Marriage which was most Just yet it is with this express quality that there were competent means for a provision to the Mother remaining and that the husband had done nothing fraudfully in prejudice of that clause And the case of Smith and Muir was betwixt a Relict and a Creditor And it is not controverted but that a true and Lawful debt contracted by the Husband during the Marriage should deduce off the Conquesce And as to the Case of Frazer and Cumming it was thus By contract of Marriage betwixt Alexander and Christian Frazers The Husband did provide his Wife to ane certain yearly Annuitie in lyfrent and likewayes to the lyfrent of the clause of conquesce reserving to himself certain tenements of Lands and others extending to 11000 pounds and all the question there was in relation to the import of the Reservation as to the 11000 Pounds if the Husbands Debts should affect the 11000 pounds or be deduced out of the Conquesce Upon which the Lords found that the import of the clause of the Contract is that in the first place There ought to be deduced out of the Husbands Estate extant the time of his Decease the Debts then due and next that the 11000 Pounds is to be deduced and what remains only is to be repute Conquesce By which it is evident that the 11000 Pounds that belonged to the Husband the time of the entring into the Marriage was deduced in respect of the express reservation And albeit a Husband may grant a Provision to a Child of the first Marriage
acclaimed a lyfrent of the Conquesce during the Marriage the following points were therein decided viz. 1 That the Father having immediatly after the second Contract provided 6000 Merks to his eldest Son beside the forsaid capital of 11000 pounds and his Daughter to 5000. Merks and allowed 1000 pounds for her Wedding Cloaths and having payed a great part of these sums very shortly after the Contract before it was possible to have acquired so much money as could have payed the same yet the Lords found that these sums so contracted and payed were not to be taken off the capital of 11000 pound of his Estate before the Marriage but the whole capital foresaid behoved to be deduced before reckoning the Conquesce at the Dissolution 2. In that case they found that all Debts were to be deduced both those that were prior and those that were posterior to the Marriage as appears by the debate immediatly preceeding the Interloquitor which was done upon deliberation by the whole Lords and thereafter represented of new by two several Bills containing the whole favourable circumstances of the Case and particularly that the Relict had but a very mean provision besides the Conquesce upon which she could not live all which appears by the forsaid Decreet marked at the several debates and interloquitors and what is now pretended is far less favourable then any of these Cases To the second alledging that Conquesce is alwayes understood in sua far as the Husband was richer at the Dissolution then at the Contract of Marriage It is answered that the grounds abovementioned doe fully satisfy this pretence for the estimation of the Husbands being Richer must be made with relation to these particulars whereof the Contract is provided to the Wife and if the Husband have provided a Wife to lyfrent the Conquest Lands and Heretages only it is not to be considered how far the Husband is become Richer in sums of Money Goods and Geir whereof the Wife hath no clause of Conquesce or if the provision of Conquesce be of Lands Heretages and sums of Money as in this case tho' the Husband had purchased a great Estate in Jewels Plate Victual Cattel or any moveables that is not to be considered but only how far he is become richer in Lands Heretages and sums Conquest which is not pretended in this Case but only that he is richer by payment of his Debts and reâ—eiving of his Lands And seing my Lady did not take my Lord oblidged to imploy all Goods Geir and movables whatsomever it is a demonstration that she did not intend to tie him so closs as is now pretended but left to his own discretion whether he would enrich himself in these particulars provided for her lifrent-use or in others wherein she had no interest To the third it is admired that the Lady should recur to Decisions to fortify her pretence for in all the Decisions for above sixty years there is no variation except in that pretended Decision adduced be the Pursuer Skeen contra Robertson which has not been seen by the Defender not being in Durie nor any citted known Writter and whereof the circumstances doe not appear and all others doe agree in this that a Husband or Father may not only do all onerous Deeds but may give Liberalities and Gratuities even to Children or to the Heir where there is a rational Cause much more may urgent Debts be payed whereto the Acquirer could be compelled And as to the only defence against all the Decisions upon the singularity that the Pursuer had no special provision and that by the advice of an eminent Lawyer It was thought fitter to take these general Clauses then a provision of 3000 Merks yearly It is answered this speciality makes no alteration it being impossible to find different Cases so perfectly agreing but some circumstances will vary but here the rule of the Lords Decisions is that all rational Deeds shall be sustained and if this be such a circumstance that it renders the payment of the Debt in prejudice of the Conquesce fraudulent then it is relevant but not otherways and still there is to be a difference wade betwixt first and second Contracts of Marriage for if a man in his first Contract of Marriage gave no special provision but a clause of Conquesce whereby if the Husband should voluntarly evacuat the Conquesce the Wife of his youth and Mother of his Children would become destitute and miserable It were infamous in him to evacuate such a Conquesce except by inevitable Deeds and any voluntary Deed would in Justice be reckoned fraudulent but in a second contract where there is no portion but a joynture that returns at dissolution the like favour is not due For if the Relict have an honourable provision whether by the first or second Marriage it imports not yea there is nothing more ordinary then that Heiresses do content themselves with the lifrent of their own Heretages and oft times with less yet in the case Robertson against Robertson 15th July 1673. It is plead for the Rclict who was Wife of the first Marriage that she had only an clause of Conquesce and no special provision yet a bond originally taken in the name of the eldest Son during the Marriage was sustained against her unless there were not sufficient means for a competency to her Aliunde in which case the Lords found the bond would be fraudulent and there is no question the Lady was very well advised in relation to these Cases she desired advice in as how to convoy her Joynture which was done to so good effect that the Defunct with all the Influence and right of a Husband could never come to one sixpence of the North-Countrey Joynture but these Clauses were never advised by a Lawyer to have any special effect whereof the Lords may be satisfied by the Pursuers own Assertion that 3000 Merks of Joynture was offered and was there ever any Lawyer that would prefer a general Clause of Conquesce to a special Provision which has a preference as to Moveables to all Creditors and is usually the best secured real Debt so that the neglecting of a special Provision is a demonstration that there was no Liferent under prospect and that the Clause of Conquesce was adjected of meer Stile and Formality And Sir Andrew Gilmour who drew the Contract would never have agreed to so unreasonable Clauses as these in the Contract are according to the Pursners Interpretation he being the Defuncts Brother in Law To the Fourth There was nothing ever decided contrary to what is now pleaded for the Decision finding That the Wife had Right to the value of a Fishing in Aberdeen which by the custom of the place could not be bruiked by a Woman was most juâ—◠〈…〉 like the Earl of Dumfermling Acquiring Lands in the Name of his eldest Son was justly found To have done a fraudulent Deed to evacuate the Conquesâ—e Yet betwixt the same Parties it was
the Husband against the Wife and her Assigney upon the account of the Wises intromission Stante Matrimonio with the Rents so reserved and whereof the jus mariti was renounced as said is 2 February 1667. Executors of the Lady Pilton contra Hay of Balhousie The Laird of Balhousie having granted Bond to his Wifes Sister the Lady Pilton for 1000 Merks yearly to be imployed by her for any use she pleased without her Husbands consent and secluding his jus mariti The Lords found payment made to the Husband sufficient to AssolÈie from a pursute upon a Bond notwithstanding that by the Bond it self the Husbands jus Mariti was excluded A list of Decisions anent the Import and extent of Clauses of Provision in Contracts of Marriage conceived in Favours of Heirs of Conquesce and Provision and Bairns of second Marriages for clearing that notwithstanding such Provisions and Obligments the Husband or Father hath the absolute Power and Dominion and unaccountable Administration of the Conquesce THe Lords sound an gratuitous Bond granted by Thomas Cowan to the Daughter of his first Marriage long after his second Contract of Marriage whereby he was obliged to provide all his subsequent Conquesce to the Heirs of that second Marriage to affect his Conquesce during the said second Marriage 9 February 1669 Cowan contra Young Notwithstanding that the Daughter of the first Marriage to whom the gratuitous Bond was granted was both foris-familiat and aliunde sufficiently provided before that time and it appears by the debate that as a Husband might freely have gifted all his Conquest to Strangers so he might likewayes gift rational proportions thereof to his Children of former Marriages notwithstanding any such obligment in his second Contract The Lords found that the Obligments and Provisions for Conquesce in Contracts of Matriage did not hinder the Contracters to dispone thereupon during their Lifetime 16 June 1676 Mitthel contra The Children of Thomas Little-john And that all reasonable Deeds albeit they were done or granted without equivalent onerous Causes were effectual notwithstanding of such Obligements and Provisions of Conquesce and that the Children in whose favours the saids Obligements of Conquesce were conceived could not be heard to quarrel the same 19 June Murray's contra Murray's The Lords found that rational Provisions to Children of a prior Marriage could not be quarrelled upon the Clause of Conquesce in the Fathers second Contract of Marriage And 〈…〉 7000 Merks granted to the eldest Son of the first Marriage Notwithstanding that the eldest Son had succeeded to a considerable Land Estate by his Father And in that Decision the Lords declared that they would make the former Decision Mitchel contra the Children of Little-John a Rule for the future The Lords found that old Niddry having applied considerable sums for acquiring in new and preferrable Rights of the Lands of Lochtour and for purging and disburdening the Lands of other Incumbrances and Debts The sums so expended during his second Marriage could not be repute as sums Conquest during that Marriage 19 February 1683. James Wanchop contra Laird of Niddrie in respect Niddry had a right to the saids Lands of Lochtour standing in his Person before that time And found that James Wauchop as Heir of the second Marriage could have no Interest in the saids new acquired Rights or for repetition of the sums expended for acquiring the same upon the Obligment in his Mothers Contract of Marriage for providing all the Conquesce to him And this demonstrates that sums expended for disburdening a mans Prior Heretage of Debts and Incumbrances affecting the same can never be repute Conquesce albeit thereby the Estate be nottourly meliorat and improven and the yearly Rent coming in to the man augmented A List of Decisions for clearing the import and extent of Obligments and Provisions of Conquest conceived in Favours of Wives as to their Liferents The Lords found that albeit the Husband was obliged to provide the hail sums acquired during the Marriage in favours of his Wife in Liferent yet a Bond taken by a Husband payable to a Child of his former Marriage 10 February 1629 Oliphant contra Phinnit did not fall under the Obligment of Conquesce and found that Conquesce was only to be understood of what was standing in the person of the Husband and undisposed of the time of his Decease The Lords found that a Husband having Stante Matrimonio acquired the property of Lands formerly holding of himself 26 November 1629. Lady Dumfermling contra Earl of Dumfermling and thereafter before his Decease disponing the same to be like wayes holden of himself for a double or triple Few-Duty That neither the said Acquisition nor Improvement by tripling the Few-Duty did fall under the Obligment of Conquesce in the Wife's Contract of Marriage albeit the same was acquired and improven in her time In respect the Earl had a Right to these Lands Prior to the Marriage albeit the same was only a Right of Superiority 15 July 1673. Robertson contra Robertson The Lords found that an obligement for providing the Wife to all the Conquesce could not hinder the Father to grant provisions to his Children of a former Marriage and even to the eldest Son and appear and Heir Alexander Frazer having in his contract of Marriage with Christian Frazer his second Wife provided her to a mean Provision of the annual rent of 3400 Merks and to the lyfrent of the half of the Conquest that should be made during the Marriage and having for preventing any debate anent the Conquest insert in the said contract 8 December 1687 Frazer contra Frazer a particular inventar of his Estate extending to 11000 pounds scots or thereby It happened there was a considerable Conquesce of 15 or 16000 pounds made during that Marriage But Alexander Frazer the Husband did exhaust and spend all the said conquesce by gratuitous Donations to his eldest Son and Daughter of the first Marriage of 8000 pounds Scots and upwards and did expend the sum of other 8000 pounds or thereby that was likwayes acquired during that Marriage for payment of other Debts for which he was engadged Prior to his said second Contract Christian Frazer having after the decease of the said Alexander pursued his Heir for the half of the foresaid Conquesce and it being debated whether the gratuit ous donations to the Children of the first Marriage and the sums payed out for Debts contracted and due by the Husband before his entring into the second contract of Marriage with the Pursuer should affect the Estate belonging to the Husband before that Contract and the saids gratuitous Donations and Debts sua payed should be sustained to exhaust the Conquesce in prejudice of the Relicts Lyfrent who was so meanly provided The Lords found that the Heir of the Defunct ought to have the 11000 pound to which the Fathers Estate was estimate in the said second Contract
be condescended upon that any sums of Money were due to Collingtoun but an pretended Debt due by Huntley which single Debt could never answer the Clause in case I shall receive sums And certainly if this Debt had been designed it would have been exprest for where there is only one particular under consideration no body uses to express that single thing under a generality when there is nothing else can be included 4. If this Clause had been meant of Huntley's Debt why was the Lyfe-rent only granted in case the sum were received for a mans uplifting and recovering his own was never Conquesce and therefore if this Clause had been meant to extend no farther then Debts due to Collingtoun the time of the Marriage the Lady would have been provided to the Lyfe-rent of all Debts due to him without that condition and quality In case he should receive them But the truth is my Lord Collingtoun was a man of more â—ngenuity then to have sham'd his Lady with mentioning this Debt which neither is nor ever was 〈…〉 is but of a few dayes before the Sentence against the Marquess of Argyle And it was then perfectly understood that Huntely was to be Donator to Argyles Forfeiture in so far as concerned Huntley's Estate so that this Debt was for ever excluded But suppose there were no Forfeiture in the Case the expyred Comprysings did absolutely convey his Estate and it was possessed be the Marquess of Argyle be vertue of these Comprysings and not be the Forfeiture for this Debt was never worth the regarding much less to be the only subject of the separate Clause 5. In this Sense the Clause had been ridiculous and of no Security to my Lady for if her right to Lyfe-rent the sums due to Collingtoun did depend upon his pleasure in uplifting and recovering these sums then the obligment imports no more then that my Lady should Lyfe-rent what he pleased for it could not be expected that he would prejudge his Heirs by uplifting sums only to gratify his Lady with a Lyferent And these absurdities must convince that this can never be the genuine meaning of the Clause but the designe is plain and the words are adapted to Pensions and Sallaries which he should receive as due to him during the Marriage And it is a general Rule in the Interpretation of all Contracts and Clauses That that Sense and Construction should be admitted whereby the Clause should not be superfluous redundant and ridiculous And in this Case the Clause must either operate a Lyfe-rent of the sums Conquest or of all the sums received or else all the Provisions in Favours of the Lady for which she renounced her Terce and third part was superfluous and elusory 6. By the Clause in the Contract of Marriage my Lord Collingtoun being obliged to Imploy All sums of Money Lands or Heretages that he should happen to acquire or sums of Money due to him whereof he should receive payment during the Marriage Albeit the Lady might justly crave the Lyferent of all the sums of Money that can be instructed my Lord Collingtoun received during the Marriage which is the express Terms in the Clause of the Contract yet she declares that she insists only upon the 〈…〉 1. That what Debts my Lord Collingtoun has payed due priot to the Marriage with Sums of Money acquired and received during the Marriage that she should have the Lyfe-rent of the same upon this ground because if these Debts had not been payed they would have affected this Lord Collingtoun the Son and he would have been lyable for the samen so that in so far as the Son and Heir reaps Benefiâ— by Imploying the sums his Father received during the Marriage for payment of Debts prior to the Marriage for which otherwayes he would have been lyable as representing his Father the Lady ought in so far to have right to the Lyfe-rent of the sums with which the Lord Collingtoun payed the prior Debts 2. The Lord Collingtoun did not only reap Benefit by his Fathers payment of prior Debts with sums of Money that he received during the Marriage but also the subject that he has acquired by these sums he received during the Marriage being extant at the dissolution of the Marriage The Lady by vertue of the foresaid Clause in her Contract must have Right to the Lyfe rent of what was acquired during the Marriage and extant the time of the Husbands Decease and therefore in making the Computation of what the Lady should have Right to Lyfe-rent the Lord Collingtoun's condition and the condition of the Estate is to be considered as it was the time of the entry into the Marriage and as it was at the time of the Dâ—ssolution thereof and in so far as the Estate is meliorat and what the Lord Collingtoun had more at the Dissolution of the Marriage then he had the time of the entering into the Marriage that must be understood to have been acquired during the Marriage and the Lady must have the Lyfe-rent of the samen especially seing in all such cases where the Wife is provided to the Lyfe-rent of what should be Conquest and Acquired during the Marriage The Lords are alwayes in use to take Tryal of the Husbands Condition the time of the entering into the Marriage and of his Condition the time of the Dissolution thereof and what ever his Condition was better at that time then it was at the time of the entring into the Marriage that is esteemed Conquesce to give the Wife the Benefit of the Lyfe-rent of the samen which is clear by several Decisions and particulary the 4th of March 1623. Skeen contra Robieson Where the Husband by his Contract of Marriage being oblidged to give a Lyferent of the Conquesce during the Marriage to his Wife and the Fie to the Heirs of the Marriage And he having acquired certain Lands and Fishings that did hold of the Town of Aberdeen in his Sons Name and the Relict having pursued the Son as representing his Father upon the passive titles for the lyfrent of the Lands and Fishings And it being alledged that she could not have the lyfrent of these Lands and Fishings because by ane Act of the Town of Aberdeen which was confirmed by the Queen the Lands and Fishings could not be fewed nor lyfrented by a Woman upon which the Lords found that albeit the Relict could not lyfrent the Lands and Fishings yet the Heir should give her Damnum et interesse because the Husband could not be allowed to make any purchass that could prejudge the Wise of her lyfrent And the 3d of July 1627. The Lady Dumfermling contra the Earle her Son Where by the contract of Marriage the Lady being provyded to all Lands that should be conquest during the Marriage and her Husband having acquired certain Lands during the Marriage and taken the Rights in his Sons name the Lords found that the Lady had the right of the lyfrent of the