A contract, though made betwixt husband and wife stante matrimonio, whereby he reponed her to all he got by her, and she renounced all she could claim by his death, was sustained.
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Andrew Gib having married Christian Hume, the relict of a prior husband, after they were married, they not living in concord together, and stante mærimonio they make a contract betwixt them, with consent of the bairns of the prior marriage, and friends, whereby it was convened, that her husband should repone her to all the goods and monies which he had received by her marriage, and pertaining to her, and that she should therefore renounce all part and portion of all gear pertaining to him, which she might claim by his decease; thereafter the wife dying, and her testament being confirmed, whereby her bairns got all the gear pertaining to her, another (by these bairns’ motion) takes a dative ad omissa to the half of the goods, pertaining to the husband, not confirmed in the wife's testament, and pursues the said husband therefor; who, defending himself with the said contract, and the pursuer answering, that it was a writ against law, done betwixt husband and wife, who cannot contract stante matrimonio, and therefore is null; for otherwise all women might be prejudged heavily, who might be induced to prejudge themselves the time of their marriage, if such writs were permitted; the Lords not the less sustained the exception; and found the contract lawful, albeit done betwixt man and wife the time of their marriage, because it was contractus mutuus, containing therein a donation reciprocal and vicissitudinarie, which is not prohibited in law; and none could quarrel the contract, except they would restore that which was received by the woman, and render it back again to the husband; for it were iniquity that the wife should prejudge the husband, by receiving from him, and not to render again what was received, if any would have her free of the contract; for jura subveniunt læsis et deceptis, et non lædentibus et decipientibus; likeas the woman after the contract compeared judicially, and ratified the same, and died, never quarrelling, nor revoking the same before her decease; in respect whereof, the Lords found the contract sufficient and lawful, as said is.
Act. Hepburn.Alt. Nairn.Clerk, Gibson.
Fol. Dic. v. 1. p. 410. Durie, p. 712.
