Although it was offered to be proved, that a wife who had been married in England, would, by the interpretation there, of the words of the deed, “ad opus et usum,” have only had a liferent use; she was allowed the full right here, as the subject was to heirs and assignees.
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Umquhile Mr John Oswald having married Dorathy Gray, in England, did, at the time of their contract, grant an English bond of L. 1,000 Sterling, to the said Dorathy's mother, and on Wilson, ad opus et usum dictæ Dorathæ, the condition of which obligation is, that if Mr John shall pay the said entrusted person the sum of L. 600 Sterling, or shall secure the said Dorathy in lands or chattels, worth the said sum of L. 600 in his lifetime, or by his testament, then he shall be free of the L. 1,000; Mr John granted assignation to the said Dorathy of 5,500 merks due to him by the Earl of Lauderdale, bearing expressly the same to be for implement of the bond, and assigning both principal sum and annualrent. Dorathy confirmed herself executrix to her husband, gives up this bond, and obtains decreet against Lauderdale, who calls Dorathy on the one part, and the apparent heir, and creditors of the said Mr John, on the other part. It was alleged for the apparent heir and creditors, That they ought to be preferred to the stock of the sum, because the clause, ad opus et usum, could only be understood to be for Dorathy's liferent use, and not in fee, and as for the assignation it was on death-bed, and so could operate nothing in their prejudice. It was answered for the said Dorathy, That she opponed the clause, the meaning thereof was no other, but that her mother and Wilson were creditors in trust to the use and behoof of her, and could not be a liferent right, because it was provided to her, her heirs, executors, and assignees; and as to the assignation, though on death-bed, yet it may very well be used as an adminicle to clear the meaning of the parties.
The Lords found the clause to carry the stock of the money, and preferred Dorathy. And it being thereafter offered to be proved, that by the custom of England, such clauses signify only the liferent use, the Lords repelled the allegeance, in respect of the clause, being provided to Dorathy's heirs and assignees, and in respect of the clearing the meaning thereof by the testament would not delay the process upon the proving the custom of England, the matter being clear in contrary.
