Stipulations in favour of third parties. - Order to pay money to third parties. - Effect to the third party, of voidance of the right by which he had been favoured.
Bishop of St Andrews v. Wyllie
Date: 18 December 1633 Case No. No 3.
Where a right arises to a third party from a donation inter virum et uxorem stante matrimonio, the revocation of such donation will not void the right of the third party.
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There being a pension granted of victual, by the Bishop of St Andrews, in anno 1584, cum potestate transferendi in favours of an assignee, and with power to that assignee de novo to assign to another, who should bruik during his lifetime; the pensioner having made his daughter assignee, who being thereafter married upon one Wyllie a writer, and she durante matrimonio having made her own husband assignee to the pension, who, after that assignation, obtained decreet at her own instance, with consent of her husband, of letters conform to the pension; likeas, certain years after this assignation made to her husband, she and her said husband miskenning the first assignation, assigned the pension to their daughter, procreate betwixt them, by the which second deed, the daughter acclaimed the benefit of the said pension during her lifetime; the matter and right to the victual contained in the pension, being disputed in a double poinding, whether she, as assignee, or the bishop, should be answered thereof; for the Bishop alleged. That the said pension was become expired, by the said prior assignation, made by the wife to her husband, after which there was no power by the pension to assign de novo; specially seeing the husband had obtained possession, conform to his assignation, and after his wife's decease, had granted two discharges of the duty of the said pension proprio nomine, and as having right in his own person; and whatever assignation was made to the daughter after the first, being kept up betwixt them, to make use thereof, as they pleased, and to the evident intended prejudice of the bishop, it ought not to be respected; the daughter, on the other part, alleging, that the first assignation was null, being done betwixt husband and wife, inter quos donationes factæ de jure non valent, nisi morte confirmentur; likeas this is revoked tacite, (which is sufficient) by the assignation made to the daughter, which is done with consent of the husband, and who, as father and administrator to her, obtained decreet at her instance upon that assignation; and whatever acquittances the father has thereafter granted, must only be reputed as administrator to her; so that the first assignation, if any were, took never effect, and is null in law, and cannot be respected, as if thereby the pension were extinct;—The Lords found, that the bishop ought to be answered and obeyed, and that the daughter, the assignee, had no right, and repelled her allegeance; for the Lords found, that the first assignation denuded the pensioner, that thereafter she could not make any other assignation to her daughter; neither found they the posterior assignation to be such a deed, as whereby the first was revoked, in prejudice of the Prelate cui jus erat acquisitum by the first deed; specially that alleged deed of the second assignation, whereby it was alleged to be revoked, being done by himself and his wife also, which could not be thought as a revocation in law, that he should be both the revoker, and the person from whom it was revoked, and being private deeds betwixt most conjunct persons, which they might use and destroy at their pleasure, and which was not allowable.
Act. Per Advocatum Regis et Stuart.Alt. Nicolson et Mowat.Clerk, Hay.
Fol. Dic. v. 1. p. 513. Durie, p. 696.
