Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Countess of Cassils
v.
The Earl of Roxburgh

Date: 18 July 1671

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The Countess of Cassils, in her contract of marriage with the Lord Ker, being provided to £5000, he did, stante matrimonio, provide her to an annualrent of 10,000 merks further during her lifetime. And, upon his deathbed, he made two testaments of one date: By the one he nominated his father tutor to his children, and left to him the provisions of his wife and children: by the other he provided his lady to £5000 more than her contract, and named provisions for his children; but subjoined a clause, that if his father, who was then in England, returned and made use of the other testament, that this testament should be null. The Earl of Roxburgh his father did return, and was infeft as heir to his son, and did ratify his son's bond of provision of 10,000 merks; and, by his testament, did expressly mention his son's former testament; and, by virtue thereof, named tutors to his oyes; and, by a bond apart, gave different provisions to them from those appointed by their father's testament; and this Earl of Roxburgh, being heir of tailyie to him, did, in his contract of marriage, reserve the pursuer's infeftment of this annualrent, and did, many years, satisfy and take discharges of the same; and now she pursues the Earl, as controverting the payment for some years bygone, and in time coming during her life. The defender alleged, Absolvitor; because, the pursuer being competently provided by her contract of marriage, this additional provision was a donation betwixt man and wife; and so, by the law, is revokable at any time during the husband's life, even upon deathbed, or by his testament, not only by a direct revocation, but by any thing that might import a change of his mind; and accordingly he hath revoked the same by his testament produced, adding only £5000 to his lady's provision by her contract: and albeit thereafter the late Earl did ratify and acknowledge this additional provision, yet therein they were errore lapsi, not having known of this testament of the Lord Ker, at least not having understood that it imported a revocation of this provision; and therefore may justly now reclaim against it. The pursuer answered, That this testament imported no revocation which it did not mention; neither is the addition of £5000 therein an indirect revocation, which must ever be by an inconsistent deed; but both these conditions are consistent, albeit that, by the testament, it be modo inhabili: and it is very like that the testator, being taken with a great fever, did not remember of this provision, or added the other £5000 on this consideration that the former provision was only to take effect after the Earl of Roxburgh's death; so that the Lord Ker's meaning might probably be, to add £5000 during his father's lifetime. 2dly. Though the testament could import a revocation, yet the testament itself being conditional, only to stand in case his father returned not to Scotland and made use of the other testament of the same date, all the tenor of it, and this restricting clause, is affected with the same condition; so that if the testator had said, that he had restricted his lady's additional provision to £5000 in case his father returned not, but, in that case, left her to his father's provisions, it would be truly a conditional revocation; which condition is purified by the father's return, and providing the lady by his ratification of this bond of provision: nor can it be justly alleged, that both this and that Earl were errore lapsi, seeing the testament is produced by the Earl himself, and was never in the lady's hands; and, doubtless, it hath been advised by the late Earl ere he ratified, who was a most provident man, and his ratification is dated at the Canongate, ubi fuit copia peritorum: and if ratifications should become ineffectual, or if errore lapsus should be relevant upon the ignorance or mistake of the import of a writ, ratifications should be of no effect; but any ground that might defend the ratifier before the ratification, might annul the same, upon pretence that he knew it not; and, therefore, errore lapsus is only understood de invincibili errore facti, but never de ignorantia juris, quæ neminem excusat. The Lords found, That any revocation by the testament was only conditional, and became void by the Earl's returning and making use of the other testament; and therefore repelled the defence in respect of the reply, and had no necessity to determine anent the confirmation and error alleged.

Vol. I, Page 760.