[1641/8/201]¹

Act in favour of orphans, fatherless and others

Our sovereign lord, with the advice and consent of the estates of this present parliament, understanding many pitiful effects daily found and increasing regarding the misery and poverty of orphans and fatherless children to have been occasioned in this manner: that many ignorant people the time of the acquiring to them of bonds, contracts and other securities for payment of sums of money take the same to them, their heirs, executors and assignees with clause and condition of annualrent thereof during the non-payment of the said principal sum, meaning thereby that the same should in no way remain unprofitable during the non-payment thereof, and in no way that the said clause or condition should make the same sum pertain to the heir in prejudice of their bairns and other nearest of kin by the heir, whereas by the contrary, by the interpretation now observed, all such sums and securities bearing annualrent or profit are exposed to be heritable after the term of payment and to pertain to the heir, so that thereby the rest of the children, nearest of kin and others having interest are altogether therefrom secluded and left pitifully unprovided of any means to live on, as also the said bonds and contracts are very often fraudulently concealed and abstracted and never known to the true owners thereof, that in due time they might make use of the same, which is against both equity and conscience, and the intention of the party acquirer of the said securities, whereby great number of orphans, fatherless children and others that are so prejudiced of that is due to them, either by their natural portion or otherwise due, are brought to great poverty and misery and forced to become beggars, which is often found by pitiful experience. For remedy, our said sovereign lord, with advice of the said estates, statutes and ordains that all contracts or bonds for sums of money payable to parties with condition of payment of annualrent or profit made at any time hereafter shall be held and estimated to pertain to the bairns and nearest of kin to the deceased, unless sasine follow thereupon in the lifetime of the creditor acquirer thereof, or that by the tenor of the bond or contract the same be conceived to be payable to the heirs and assignees secluding the executors, or otherwise that the said bond or contract bear expressly obligation to infeft; in either of the which excepted cases, ordains the said sums to be heritable and pertain to the heir, and outwith the said excepted cases, ordains the said sums to be confirmed by the executor without payment of any quot for the same, and that to the end the nearest of kin and others having interest as said is be in no way frustrated of what may be due to them, nor yet the said bonds or contracts fraudulently concealed or abstracted from them, every one of them for their own parts, providing always that by virtue of this present act the bonds or contracts hereby ordained to pertain to the nearest of kin to the deceased and to be confirmed shall not fall under the compass of escheat, nor yet any part thereof pertain to the widow by right of the widow, but shall remain in the own nature quoad fiscum et relictam as they were before the making of this act.