Consent not presumed, when the Deed can be ascribed to another Cause.
Marjory Murray v. Isobel Murray
Date: 12 July 1671 Case No. No 68.
A person in his testament appointed his wife executrix, and left a legacy to his daughter. The widow confirmed the testament under protestation, that it should not prejudge her own right. This was found to take off the allegeance of homologation, and so the legacy was found a burden upon the dead's part only.
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Umquhile ——— Murray having infeft Isobel Murray his wife in two tenements, did thereafter by his testament, leave a legacy of L. 1000 to their daughter Marjory Murray, and gave other provisions to the said Isobel his wife, and provided his daughter to the two tenements, which testament the wife subscribes, and after his death confirms the same; but under protestation, that her confirmation should not prejudge her own right. The daughter pursues for the legacy of L. 1000, and for the rents of the tenements, and alleges that the L. 1000 must be free to her, without being abated by implement of the mother's contract, and likewise the two tenements by her mother's consent and subscription. It was answered, That the mother's subscription was a donation betwixt man and wife, for being to the man's daughter, whom by the law of nature he is obliged to provide, it was all one as if it had been to himself. 2dly, Her subscription was obtained in luctu, her husband being near his death, and at his desire, ex reverentia maritali, and the confirmation can be no homologation, because of the protestation foresaid. It was answered, That it was protestath contraria facto; and the wife had no necessity to do it, for she might have confirmed herself executrix creditrix.
The Lords found that there was here no donation between man and wife; but in respect the parties had not debated the effect of reverentia maritalis, ordained them to be heard thereupon, and found the protestation sufficient to take off the ratification, or homologation by the confirmation, and found the legacy of L. 1000 to be left only according to the nature of a legacy, out of the defunct's free goods, and would not exclude the relict, or any creditor. See Legacy.
Fol. Dic. v. 1. p. 383. Stair, v. 1. p. 755.*** Gosford reports the same case:
Majory Murray having pursued her mother for entering her to the possession of a tenement of land whereof her mother was liferentrix, and for payment of L. 1000, conform to her father's testament testamentar, subscribed by the mother, it was alleged, That the said subscribed testament was not obligatory; likeas there was a reduction raised upon these reason, 1mo, That it was subscribed in mærore et luctu, she being induced by her husband who was then a dying; 2do, It was donatio inter virum et uxorem, and so revocable; 3tio, The L. 1000 left in testament was but a legacy, which could not be paid, the debts being greater than the moveables. It was answered to the first, That no deeds granted in luctu et ob reverentiam maritalem, were reducible by our law, which being a general case, the Lords reserved to be debated in præsentia. To the second, It was answered, That the subscribing of the testament, bearing the disposition of a liferenter's right of a tenement of land was in favours of the daughter, and not of the husband, and so was not donatio inter virum et uxorem. To the third it was answered, That the L. 1000 being for the provision of a bairn, the mother having both subscribed to the same, and confirmed the testament, did make herself liable, and could not exhaust the inventory by any debts due to herself by contract of marriage. The Lords did find, that the mother subscribing as to her liferent right in favours of her own daughter, albeit in her husband's testament, it was not donatio inter virum et uxorem, and could not be revoked; but for the L. 1000 left by the father, they found that it was a legacy, and that the mother having consented to it, did not prejudge her as a lawful creditor by her contract of marriage, and that it could only be due deductis debitis.
