Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Corbet v. Anna Meinzies, Relict of Maxwell of Wraes
1671.
February21. and
November21.
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February 21.—A woman pursuing upon her liferent infeftment, it was alleged,—That the same could not be respected; because, by a clause in the contract of marriage, (which was the ground and warrant of her infeftment,) it was expressly provided that she should have no right to her liferent till L.1000 promitted in name of tocher were paid.
To which it was answered,—That this would have met the woman well, if she had been the party binder and contractor for her tocher; but ita est, it is not she but her brother that becomes obliged for the same; and it were a very hard and unreasonable thing to defraud a woman of her liferent, because through your own default ye have not recovered the tocher; let her have her liferent, and pursue ye as accords.
My Lord Advocate would admit her infeftment, notwithstanding of the said quality in the contract matrimonial; unless the defender would say that, per eum non stetit the tocher is not paid, and that he has used diligence for recovering the same, and yet cannot get it.
Advocates' MS. No. 135, folio 90.
November 21.—.In the action mentioned supra, No. 135, (the parties were one Corbet, compriser, and Anna Meinzies, Relict of Maxwell of Wraes,) there being avisandum to the Lords, anent the point there debated, viz. whether a woman should be excluded from the benefit of her liferent, because, by a clause in her contract of marriage, it was provided that she have no liferent till her tocher were paid; whose answer being reported this day, they found, notwithstanding of the said quality, the wife behoved to have her jointure; seeing stante matrhnonio she could use no diligence for purifying the condition, and it was the husband's fault the tocher was not got in, for which the wife must not smart; unless they will say that he did diligence against the debtors to recover the tocher, but could not get it of them, or that ex notorietate conditionis, they were insolvent. Favor matrimonii is the cause of this. Interest rei publicæ mulieres esse nuptas et sic dotatas; L. 2. de jure dotium. Yet Gayl, libro 2, observatione 81, excludes the wife, unless she prove dotem suam fuisse marito numeratam.
