OLIPHANT papers – document by John PEAL, Edinburgh, 6th April 1799

For some context, and an index to these documents, please SEE HERE.

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George Beveridge (to whom the original copy of this letter was addressed) was married to Christian Oliphant (b.1770), who was the oldest child of Henry Oliphant (b.1741) and Christian Barker (b.abt.1741, d.1777). After Christian Barker’s death, Henry Oliphant remarried, to Janet Hutchison, and they had several children. This document appears to be advice on how Henry Oliphant’s estate should be shared between the children of his 2 marriages. See the “Henry Oliphant estate” tag for all the documents relating to his estate.

OLIPHANT papers; envelope 1; document 1;

Cover;  cover_Jn-Peal_Apr1799
Transcription of cover;

[Law Opinion]; by Jn Peal; Edin[burgh] 6th April 1799

Enclosed letter by John PEAL;  cover-letter_Apr1799

Transcription of letter;

Copy of a letter addressed to Mr George [Beveridge] in which the [following] was inclosed. 

——————————————–

Edin[burgh] , 6th April 1789

Dear Sir,
~   I duly received your’s of the 3rd [Mar]
and feel obliged to you for the [good] opinion you
[entertain] of me which I shall study to [deserve].

~   The regular way for your friend would have
been to apply for the [opinion] of Council on points of
Law that being their special [promice] – I have [however]
as you [desire] stated what [occurs] to me upon [the]
[business] which may perhaps satisfy your friend
in the matters he wishes to [be] [informed] of ~

~   In place however of [trusting] to [speculative]
[points] of law I should advise [your] friend to two things
first to [procure] a settlement with the children of the
first marriage for their mothers [executory] and get
their discharge otherwise I can forsee that one day
or other it will come to a [bond] of contention and produce
much family uneasiness. In the [next] place I should
advise him to execute a [rational] settlement of both his
heritable and moveable property in such manner as
he thinks fair & just. But if he consults his families
interest he will not attempt to [frame] any deed
himself otherwise he may lay the foundation of a
law plea which deeds executed by [ignorant] people
[seldom] fail to produce ~ if you or he choose to
make a [step] over I shall [converse] with you on the
business [at] large when more can be done in an
hour than by a long correspondence

[I remain]
[your …]
Dear Sir
John Peal

Page 1;  page-1_ed

Transcription of page 1;

1
In the state [of] the family as represented the # father has children by two marriages – his property # consists partly [of] heritable [&] partly of moveable subjects # and he has [entered] into no contract of marriage with # either of his wives.

The rule of succession if # left to the [operation] of law [stands] thus – on the # death of his first wife the moveable property # divided into three parts – two parts remain with the father during his life the remaining third # part fell to the children of the marriage # equally – as the nearest of kin to the mother # and if these children are of age they could # insist against the father for immediate # payment of this third share – it will be # [adverted] that it is the free produce after # all [debts] are deducted – the father can’t deprive # his children of this legal right by any subsequent # deed or testament he may make if they should # find it for their interest to insist upon such # legal right.

Should the father die intestate # the eldest son [whether] of the first or second # marriage or in the case of his predeceasing his …

Page 2;  page-2_ed

Transcription of page 2;

2
… his father leaving children his heir will take # the heritable property; or [if] the heir finds it more # for his interest he may [call..] with the younger # children that is put the [whole] heritable and # moveable property together [and] take an equal # share with the other children.

The Fathers moveable property # will divide into three parts the widow will take # One Third the Children of both mariages take # another third as nearest [of] kin and they also # take the remaining third being the [deads] part # It will be noticed that the Children of the first # marriage have the right formerly mentioned as # Flowing for their deceased mother over and above # their equal share on the fathers death.

There is nothing to prevent the # father from leaving his heritable property by # regular deed executed while in health and of a # sound mind in any manner he pleases. But a # deed of that nature executed after having contracted # or […ing] under the desease of which he dies ~ # should he die within sixty days of executing the # deed without being at Kirk or Market is liable # to be reduced at the instance of the heir [at] Law.

The Father may also settle his # Moveable property by Testament at any time …

Page 3;  page-3_ed

Transcription of page 3;

3
… in his life to a certain extent at least but he # cannot as before noticed affect the right of the # Children of the first marriage of their mother’s # share nor can he affect his widows right to # a third of the moveables nor the portion # called legitim falling to his children In # short he can only properly test upon a # third of the moveables or the dead’s part.

This seems to answer all the # questions put except whether a holograph # Will or Testament is good whether [we are] on # Stamp paper or not – There is no doubt # that a deed [strictly] of a Testamentary nature # may be good though wrote upon unstamped # paper but a very little difference in words # will take a deed out of that line when # it would not be good [write] stamped # which might require a heavy penalty # It is therefore highly imprudent to run the risk.

I holograph Deed is certainly # good but attended with this disadvantage # that without witnesses it does not prove # its own date, which in some cases might # come to be a serious inconveniency.

It may be proper to notice further …

Page 4;  page-4

Transcription of page 4;

4
… further that in the division of moveables the # widow has no share where the money is lent # out upon a Bond bearing interest nor had # the deceased wife any right which she could # transmit to her Children in Bonds belonging # to the husband where from the conception # of them executors were [secluded] which # is sometimes the case nor will the younger # Children have any right to such Bonds # they will go to the heir if the Father dies # intestate. But upon these he may dispose # as pleases during his life.

Notes; The document is on 2 sheets of paper, both embossed ” 1816 “, and with a shield design (on other sheets of paper among this group of documents, the same shield design appears along with the wording; “W Cadell & Co”).

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