[A1704/7/21]*[print] [email] [cite] [preceding] [following]
To his grace John [Hay], marquis of Tweeddale etc., lord high commissioner to the parliament of Scotland, and to the right honourable the estates of parliament, humbly means and shows Frances, countess dowager of Seaforth, that where I, being daughter to [William Herbert], marquis of Powis in England, was in the year 1689 married to [Kenneth MacKenzie], earl of Seaforth and brought with me for portion £6,000 sterling, which, with the contract that the earl and I should be maintained in the marquis, my father's house, for three years (likewise de facto we were maintained freely and honourably for five years) was a rich and opulent fortune, for which the deceased earl and his friends did agree by articles that I should have £1,000 sterling yearly of jointure by way of annuity, payable in London, Paris or Brussels. For implement whereof, there was a disposition of the said jointure annuity payable out of the estate of Seaforth, drawn in Scotland by advice of the best lawyers, and subscribed and granted by [Isobel MacKenzie], countess of Seaforth, elder, in whose person nine preferable apprisings of the estate all therein narrated were settled, and upon this disposition so advisedly and solemnly drawn I was infeft under the great seal; but though the conditions of the marriage were thus settled, and that the marriage ensued, and a son and a daughter were procreated thereof, yet when the earl died in the year [...] and that I ought to have got possession of my jointure, there was none found to answer or so much as to regard me, so that in the space of upwards of two years all that I received for myself or children was £15 sterling, whereby I being constrained to pursue actions of poinding the ground and for mails and duties before the lords of session, I there unexpectedly met with two interests cast in, namely: an adjudication by [Roderick MacKenzie of] Prestonhall, lord justice clerk, and another by Mr Robert Blackwood, merchant, who both objected against my jointure settlement that it was a non habente in so far as it did not appear that the old countess dowager had any right to the aforesaid apprisings founded on as the ground of the said jointure settlement, and for fortifying this allegiance, there is a reduction also offered and repeated. I being thus surprised that I, a stranger who had brought so opulent a portion and was become the mother of the family, should meet with such a disappointment by the denying and withdrawing the midcouples of my security, whereof I never was nor properly could be master, having reposed entire confidence in the faith and honour of the person I dealt with, especially of the countess dowager, my mother-in-law and the author of my said settlement, I am constrained to take a day to produce the rights wanting; and having taken out a diligence against the countess dowager, her authors and several other persons who thereupon made faith as to possessing the said apprisings and conveyances thereof whereupon my jointure right is founded as said is, all that I could obtain was that though the apprisings and infeftments thereon, with the dispositions thereof made to the trustees mentioned in my settlement, might be extant, yet all these rights having been conveyed to Kenneth MacKenzie of [...] for the countess dowager's benefit, and who either at the same time deprived himself by a disposition in her favour or granted a back-bond for that effect, the possession of the said disposition and back-bond was denied and none were found to own the possession of it, whereby, albeit it be certain that for anything that appears the old countess be still and only in possession, yet I was frustrated and could not prove in time the said countess dowager's right and power to have made the said settlement, and thus I was postponed and left no visible remedy, save an action to prove the tenor, both tedious and uncertain. It's true the lords of session, perceiving how I was postponed and what hard measure I met with by the abstracting of papers, even by my own authors, and such in whom I might justly had confided, did, upon my application, appoint me an aliment of £500 sterling from year to year for two years, but such is still the stubborn opposition I meet with, that now, after two years, there is scarce one year of the said aliment paid, and that very payment has been so costly and expensive to me in using poindings of the ground and being necessitated to apply for the assistance of her majesty's forces, and yet notwithstanding meeting with deforcements besides other hindrances cast in my way, that I can freely and clearly say I have saved nothing of the said first year's aliment. This being my case, any remedy I can expect is from your grace and right honourable estates of parliament, to whom I the rather apply, that the old countess has also given in a protest before the lords of session for remedy of law to her majesty and parliament, and seeing that George [MacKenzie], earl of Cromarty, is the only trustee now alive who conveyed the aforesaid apprisings in favour of the said Kenneth MacKenzie, and that the said Kenneth MacKenzie, who was trustee for the old countess of Seaforth, is also alive, and that it is both in his power and he is also obliged in law to renew the deed, whether a disposition or back-bond, that he granted to the said old countess for depriving himself of the said apprisings conveyed in his person, and by virtue whereof the said old countess made the aforesaid jointure settlement in my favour, it is evidently necessary that I have action sustained to me against the said Kenneth for renewing the aforesaid deed, as he has been already required to make up what is lost or abstracted as said is. As also that I, the young countess, have warrant to cite the said earl of Cromarty who both can give light and also can supply what may be wanting in the said conveyance, as also to cite all such persons as may be the possessors, concealers or abstracters of the aforesaid apprisings and their conveyances, it being manifestly a great and extraordinary hardship that I, a stranger bringing with me such an opulent portion and obtaining such a solemn settlement for a jointure after having been married, and also brought forth children and lived in my married estate to the satisfaction of all concerned, should now, upon the death of the earl, my husband, be wholly frustrated of my jointure and plainly eluded by the abstracting of writs, which I firmly believed had been in all safety in my authors' hands and who still possess the estate, so that now I am in hazard to be reduced to the greatest extremities; and therefore the said Kenneth MacKenzie ought and should be determined to make up and renew the aforesaid deed lost and abstracted as said is, and being so made up and subscribed, to give the same or at least an authentic extract thereof to me for security of my said jointure. As also George, earl of Cromarty, principal secretary of state, Isobel, countess dowager of Seaforth, and all others who have had or who have put away the said apprisings and conveyances thereof ought and should be determined to exhibit the same, or at least orders ought to be given to the sheriff of the shire to secure the charter chest of the said estate, which now seems to be abandoned, and such further directions given for the opening and inspecting thereof as your grace and honourable estates of parliament shall find reasonable, to the effect I may not be perpetually excluded from my jointure by keeping up and abstracting of the said writs that are so necessary for the prosecution thereof. Therefore I beseech your grace and right honourable estates of parliament for letters to summon the said Kenneth MacKenzie, George, earl of Cromarty, Isobel, countess dowager of Seaforth, and the persons following, namely: [...], who in any way had, have or have put away the said apprisings and conveyances thereof, to compear before your grace and lordships at a certain day to hear and see the said Kenneth MacKenzie determined and ordained by decreet of parliament to make up and renew the aforesaid deed lost and abstracted as said is, and, being so made up and subscribed, to give the same or at least an authentic extract thereof to me for security of my said jointure. And the said George, earl of Cromarty, Isobel, countess dowager of Seaforth and the other persons aforesaid, who had, have or have put away or destroyed the said apprisings and conveyances thereof, to hear and see themselves determined by decreet aforesaid to exhibit the same and to hear and see orders given to the sheriff of the shire to secure the charter chest of the said estate, which now seems to be abandoned, and such further directions given for the opening and inspecting thereof as the parliament shall find reasonable to the the effect aforesaid, according to justice in common form. And your grace's and lordships' answer.
†Edinburgh, 3 August 1704
Her majesty's high commissioner and the estates of parliament, having heard this petition, allow Kenneth MacKenzie and others mentioned within to see and answer the same.
[James Ogilvy, earl of] Seafield, chancellor, in the presence of the lords of parliament