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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Kinloch of Gourdie
v.
Strachan
26 July 1676 Click here to view a pdf copy of this documet : PDF Copy
In an action at Gourdie's instance, as being infeft in Strachan's lands for security of debts, compearance was made for the relict, who craved to be preferred; because, besides her provision by contract of marriage, she was likewise infeft in remuneration of a legacy left to her during the marriage; because it did accresce to the husband, and so was valid in law, being for a just and onerous cause.
It was replied, That, after marriage, all legacies and moveables which fall to the wife by right of succession, ipso jure belong to the husband; for which he is not in the least obliged to grant any remuneration; and, if he grant the
same, it may affect the husband's heirs and executors, but ought not to prejudge the husband's lawful creditors prior to the deed of remuneration. The Lords did find, That any right, made in remuneration to the wife, could not prejudge his prior lawful creditors; seeing, in law, he was not obliged to grant that deed; and that the legacy which fell to her during the marriage did, ipso facto, belong to the husband, and not to the wife: and, therefore, any thing given to her in contemplation thereof, was, in effect, sine causa onerosa; and, being voluntary, should not prejudge lawful creditors.
Page 573.
The electronic version of the text was provided by the Scottish Council of Law Reporting