[1664] Mor 6447
Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. VIII. How far Conventional Provisions imply Discharge of a Wife's Legal Provisions.
Date: Agnes Young and Her Husband
v.
Buchanans
20 December 1664
Case No.No 44.
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Agnes Young pursues Buchanans, her children, for her third of her husband's moveables, and for her liferent use of the other two thirds, conform to her contract of marriage, whereby she is provided to his liferent of all goods and gear conquest during the marriage, moveable and immoveable.—The defenders answered, That the pursuer cannot both have the third and the liferent of the whole, because it must be presumed, that the liferent of the whole was given in satisfaction of the third and all.—The pursuer answered, That this could not be presumed, unless it had been so expressed; no more than a terce is excluded by a provision of liferent, unless it bear in satisfaction of a terce.
The Lords found the defence relevant, that the pursuer could not both have her third and the liferent of the rest, but gave her her option, either of the third, provisione legis, or of her liferent of the whole, provisione hominis.
*** Newbyth reports the same case: Umquhile James Buchanan, by contract of marriage past betwixt him and Agnes Young, is obliged to provide her to a liferent of a house in Stirling, and to the annualrent of the principal sum of 1200 merks; as also there is an obligement that the said Anna shall have her liferent use of whatsoever lands, heritages, moveables, &c. the said parties have presently, or shall happen to acquire. Upon this contract there is a summons raised at the instance of the mother, against the bairns for a terce.———The Lords found, That the wife could only have a liferent right of all sums and heritages provided to her by her contract of marriage; but that she could have no terce of the moveables; and that this is the meaning of all such contracts, and the constant custom in such cases. Yet some were of opinion, that the relict should have it in her option to crave either the terce or the liferent of the whole, in regard they thought she might renounce her liferent of the whole, and take herself to the property of the terce, from which she was not secluded, the provision not being conceived in satisfaction of all she could either ask or crave.
*** This case is also reported by Gilmour: By contract of marriage betwixt the deceased James Buchanan and Agnes Young his spouse, he is obliged to provide her to a liferent of lands and of a sum of money, with the liferent of all the conquest, heritable and moveable; whereupon she and her second husband, Walter Richardson, pursue the executors of her first husband, not only for her liferent of the hail moveables, but
for a third thereof, to a terce of some lands which she liferents.—It was alleged, That seeing she is provided to a liferent of the hail, she cannot both enjoy the liferent, and also have a third of what she liferents.—It was answered, That the contract doth not exclude her from a third of the moveables, which the law doth provide her to; and the contract providing her to a liferent, doth not say, that it is in contentation of all third. And though a wife be by contract appointed a liferenter of lands, it will not exclude her from a terce of such lands whereof she is not liferenter.—Replied, That she being provided to a liferent, it imports as much as that she should acquiesce with her liferent, without claiming interest to the property of that which she liferents; or else, if she will have a third, she must renounce her liferent, as has been ordinarily found in moveable bonds containing sums of money provided to the man and wife in liferent. Which the Lords found also in this case, conform to the preceding practiques.
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