Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. X.
The Onerosity of Provisions in Favour of a Wife.
Walker v. Polwarth
Date: 19 June 1635 Case No. No 72.
A bond granted after marriage, for a suitable liferent to a wife, by her husband, insolvent at the time, was sustained in competion with creditors, whose bonds were anterior. The wife was allowed to rank proportionally, although there was neither contract of marriage nor tocher given. Her claim arose de jure naturæ.
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Umquhile Patrick Walker being married upon one Polwarth's wife, betwixt whom there were bairns procreate, he gives a bond stante matrimonio to Henry Polwarth, brother to his wife, and to her behoof, for payment of 2000 merks, she not being provided to any liferent or conjunct see, or any other benefit or means of maintenance by her husband; at the time of giving of the which bond, the defunct was debtor to sundry creditors, by sundry bonds, preceding this bond given to his wife, in more sums of money than all his goods or means extended to; thereafter, after his decease, the relict and the creditors contesting in a double poinding, raised by the executors of the defunct, which of them should be answered of the defunct's goods, which were not sufficient to pay the half of his debts:—The creditors alleged, That the bond given to the wife could give her no right to any of the saids goods, seeing the same were given to her long after these bonds, at which time he could do no deed to their prejudice, he being then in effect a bankrupt, seeing then he had not so much gear as might pay his debts, whereby he could not give to his wife any thing, but deductis debitis, et post solutum æs alienum; and so this being donatio inter virum et uxorem, and for no lawful onerous cause, it cannot be respected against them; and where the relict opponed that it was given for her maintenance and living, she having no other thing whereupon to live, and receiving no other provision, and that it is in effect donatio propter nuptias; they answered, That it is not donatio propter nuptias, because there is no contract of marriage can be shown betwixt them; likeas she gave no tocher nor other benefit to her husband, and so of law and reason can seek no recompence of his goods; for dos et donatio propter nuptias in jure paribus passibus ambulant, et æqualiter regulantur: Notwithstanding whereof this allegeance proponed for the creditors was repelled, and the relict was found ought to have her proportion with the rest of the creditors, according to the free goods in the testament, and according to the quantity of their debts; albeit there was neither contract of marriage nor tocher given; and albeit the creditors bonds were anterior to the relict's; seeing she had a debt owing to her, de jure naturæ, for her maintenance and living, which in its own proportion is as favourable as the creditors debts.
Act. Hamilton.Alt. ———.
Fol. Dic. v. 1. p. 70. Durie, p. 767.
