Provisions granted, stante matrimonio, to the Husband, in place of Tocher, whether revocable.
Inglis v. Loury
Date: 15 December 1676 Case No. No 345.
A disposition by a wife to her husband, of an heritable bond during the marriage, found revocable by her as a donation, though there was no contract, nor had she brought any other tocher with her.
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John Inglis pursues William Loury to deliver up to him a bond of 500 merks, granted by East Sheils to umquhile Loury, and which she did assign to young East Shells. It was alleged for the defender absolvitor, because he offered him to prove that this bond was assigned by the said Loury to her husband, to which assignation the defender hath right by progress. It was answered, That the allegeance ought to be repelled, because that this being an heritable bond bearing annualrent, granted to the wife before the marriage, it did not fall to the husband jure mariti; and therefore the wife's assignation stante matrimnio, is still revocable, nisi morte confirmetur. It was replied, That though this allegeance holds true, while it is in the husband's person, yet it cannot be extended against singular successors, obtaining assignations for onerous causes; 2do, If there was no contract of marriage, this assignation is valid in place of a contract, or at least it did expressly bear for implement of a contract.
The Lords found that the assignation of an heritable bond being a donation by a wife to her husband during the marriage, that the same was revocable by the wife at any time in her life, even after her husband's death, by a posterior assignation, which was effectual against every singular successor, though acquiring bona fide from the husband for onerous causes; and found, that albeit a provision to the wife, during the marriage, where there was no contract or prior provision, is not revocable, the man being naturally obliged to provide his wife, this does not hold in an assignation in favours of a wife granted to her husband, though there were no contract, unless the assignation did bear, in implement of her contract of marriage. See Personal and Real.
