Effect, to bar removing, of a deed by a wife, alleged to be donatio inter virum et exorem.
Click here to view a pdf copy of this documet : PDF Copy
The Lady Essilmont sometime Countess of Errol, pursued the Tenants of —— to flit and remove. It was answered by the Tenants, Se non debere migrate et removere se, quia the said Lady bound and obliged her, to her husband, ante suum obitum et in tempore nuptiarum, that in case she, after his decease, intromitted with his goods or gear, she should renounce and overgive all right that she had to the said lands, for her lifetime, as it was subscribed; and that she had, de facto, intromitted. It was alleged, That this bond made between my Lord her husband and her, de jure non valuit, quod fuit donatio inter virum et uxorem, quæ regulariter prohibetur. To which it was answered, That donatio hæc morte et obitu maritu confirmatur; and so, albeit it was revocable during the lifetime of the husband and wife, yet by the decease of the Lord and husband, it was ratified and approved. The which the Lords found relevant. 2do, It was alleged, That the bond of renunciation made by the woman, behoved to have a declarator, and could not be admitted via exceptionis. The Lords found, that in so far as it was alleged that she had intromitted with the gear, that the deed's self was sufficient declarator, and where the deed is followed, there mistered no declaration, vel ubi res devenit in actum.
