Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XIII.
Effect of Consent.
Murray v. Jaffray and Murray
Date: 24 January 1674 Case No. No 82.
A wife consented to her husband's testament, by which he granted to a daughter a bond of provision. Found that this did not affect her third of moveables.
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Umquhile Murray, by his testament nominates Isobel Murray, his wife, his executrix and universal legatrix, she renouncing a tack of certain tenements in Aberdeen, granted to her by her husband in satisfaction pro tanto of an annualrent of 5000 merks, provided to her in her contract, and paying L. 1000, which he had left to their only child Marjory Murray. Isobel Murray did confirm the testament, but under protestation ‘not to be prejudged thereby of her contract of marriage. The said Marjory Murray the daughter, and Jaffray her husband, pursue the said Isobel Murray to denude herself of the said tack in their favours, and to pay the L. 1000, because she had consented to the testament, and subscribed the same. It was alleged for the defender, that her consent was null, being done ex reverentia maritali, and so no free consent, in so far as she subscribed ‘at the earnest desire of her husband,’ being then on death-bed and moribundus, and she in extremo mærore et luctu; and albeit reverentia maritalis alone be not relevant, yet it hath always been sustained conjoint with menaces; and, without question, the importunity of a dying husband the time of the wife's sorrow, is of much more force to disturb her mind. It was answered, That albeit marital reverence, joined with threats of a fierce husband, hath been sustained to import extortion, as ex justo metu, yet intreaties and grief were never so sustained, nor can they have any pretence in this case, the husband having been very long sick, and in continual expectation of death; and no sudden surprise, that might have disturbed the wife's mind, made the husband's intreaties more forcible, and the wife did intra annum luctus convolare ad secundas nuptias.
The Lords having considered the tack, that it was but a corroborative security for implement of a part of the contract of marriage, they decerned her to denude, reserving to her the implement of her contract of marriage as accords, and decerned also for the L. 1000, and found it due only out of the deed's part of the moveables, albeit it was simply conceived as a bond of provision to the daughter, seeing the wife's consent was but by her subscribing of the testament, whereby that sum was understood to be but as a legacy. See vis et metus.
Fol. Dic. v. 1. p. 438. Stair, v. 2. p. 256.*** Gosford reports the same case:
Isobel Murray having gotten a tack of several tenements of land belonging to her husband in Aberdeen, she did thereafter consent to her husband's testament and latter will to a right made to James Murray, who was heir to her husband of the said lands and tenements, in which testament there was a legacy left of a sum of money; notwithstanding whereof she did compear in a process for mails and duties, at the instance of James Murray, and craved to be preferred to him upon her tack, as being prior to his right. It was alleged, That she having consented to a posterior tack made by her husband to his heir, she could never quarrel his right. It was replied. That any consent subscribed by her being when she was in luctu et mærore, her husband being on death-bed, it was null and void in law; likeas she had revoked the same, and intended reduction upon that ground, and that it was ob reverentiam maritalem. It was duplied, That by our law luctus et mæror were not sufficient to make a deed null, specially it not being made to her husband, but to his apparent heir, who being a sou of a former marriage, must be looked upon as a stranger to her; likeas her consent ought to be attributed to the legacy, which was a remuneration thereof.——The Lords would not sustain the reason of reduction ex luctu, as not being founded in our law, where we differ from the civil law, which makes it a ground of nullity; as likewise they found, That a right being made to a third party, should not be quarrelled upon that head; but they ordained the contract of marriage with her husband to be produced, that they might know if the tack given to her was in satisfaction of any provision made in her favour, or if it was a mere donation; in which case they found, whereas it was revocable, so de facto it was revoked by the testament, and her consent subscribed by her, against which she could never be reponed. Upon the 22d of the same month, the contract of marriage being produced, with the tack made to the wife, which did bear only in farther surety of her provision, but not for implement thereof, the Lords did find, That her consent to the right of that tenement did prejudge her of her tack, but not of her full provision of her contract of marriage, to which the heir of her husband was only liable.
