A second provision by a husband to his wife, was reduced, the wife not being able to condescend upon any remuneration on her part, which a valuable accession of fortune would have been considered to be, although moveable, and falling to the husband jure mariti.
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Halyburton having married a widow in the Potter-row, there was no contract of marriage betwixt them, but be gave her first an infeftment in all the lands he had, the time of the infeftment, and thereafter he gave her a second obligement, providing certain lands to him and her, and the heirs betwixt them; which failing, to divide betwixt their heirs; her heirs pursuing to fulfil this obligement, Halyburton alleged it was donatio inter virum et uxorem, and now he revoked.
Which the lords formerly found relevant, unless the pursuer condescended, that this infeftment was remuneratory, for a proportionable provision, brought by the wife; and after condescendence, having considered what the wife brought, and what of it was before the first infeftment, and what intervened betwixt the first and the second; albeit whatever fell unto the wife, was moveable, and would have belonged to the husband, jure mariti; yet if it had been of that value, to have served both the first and second provision, they would have sustained both, as remuneratory in gratitude to the wife; but they found no such thing condescended on, or instructed, and therefore they reduced the second provision.
Fol. Dic. v. 1. p. 411. Stair, v. 1. p. 229.*** Newbyth reports the same case:
James Halyburton, brewer in Edinburgh, grants bond to his wife Margaret Allan, whereby he binds and obliges him to provide her and the heirs begotten betwixt them, failing her nearest and lawful heirs, to certain tenements of land, and to infeft them therein; the narrative was, in regard she was not provided by contract of marriage, and that he had received a competent portion with her; after the decease of the said Margaret, who died without any children procreated of the marriage, Isobel Allan, a remanent sister of the said Margaret, pursues James Halyburton for implement of the said bond of provision; and the said James having revoked the foresaid bond, as being stante matrimonio done, and raised reduction thereof, the lords found the bond granted by the husband to the wife, to be donatio inter virum et uxorem, and sustained the reason of reduction, likeas they reduced the same.
