Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. VIII.
How far Conventional Provisions imply Discharge of a Wife's Legal Provisions.
Holmes v. Marshall
Date: 2 February 1677 Case No. No 46.
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The Lords found, That a woman, being provided by her contract of marriage to a liferent of the conquest of lands, or other goods that should be acquired during the marriage, and the question being of moveables, and she having accepted a third of the same, she could not return to crave a liferent of the other two parts, though it was alleged by her, she had not accepted the same in satisfaction of what she could claim. 2do, It was found, That a woman being provided, as said is, to a liferent of all the moveables her husband had the time he married her, and which he should acquire during the marriage, it was in her option either to take, her to her liferent of the whole, or to claim the third part in property, but making election could not vary. Though this was found by plurality, yet some of the Lords were of opinion, that by the provision foresaid she has only a liferent, and that she had not the said election; seeing eo ipso that she is provided to a liferent of all, it is intended and agreed there should be no communio bonorum, it being inconsistent that she should be both proprietor and liferenter usufructu formali.
Reporter, Newbyth.Clerk, Gibson.
Fol. Dic. v. 1. p. 434. Dirleton, No 448. p. 218.*** Stair reports the same case.
Christian Holmes, by her contract of marriage, being provided to the liferent of all sums and goods acquired by her husband before or during the marriage, pursues John Marshall, as executor nominated to her husband, or as intromitter with his goods, to fulfil her contract. The defender alleged absolvitor, because the pursuer received a third of her husband's whole means, which being the provision competent to her by law, she cannot both have the third of the stock of her husband's means, and crave a liferent of the whole; for, by accepting of a liferent of the whole, she hath passed from the property of any part; it being incompatible that she should be both proprietor and liferenter of the same things. It was answered, 1mo, That except her provision of liferent bear, ‘To be in satisfaction of all that she can claim,’ no provision by paction can exclude the provision of law, as hath been ordinarily found in terces, but that a conjunct-fee, how great soever, doth not exclude a terce of the rest of the husband's estate, unless it bear ‘in satisfaction thereof.’ It was replied, That the defence founded on, is the inconsistency of a right of liferent and property of the same subject, and not the presumptive acceptance in satisfaction; and therefore if a wife be provided to a part of her husband's moveable sums or goods, she cannot both have the liferent and a third of the property thereof; yet she may have a third of any other moveable sums or goods, not provided to her in liferent; and therefore the pursuer having drawn a third, she cannot have a liferent of the other two thirds, or else she should both have a liferent of the whole, and the property of a third. It was duplied for the relict, That a part of the husband's estate bears annualrent, which is heritable quoad fiscum et relictam; and therefore her acceptance of a third of the moveables cannot exclude her from the liferent of the sums bearing annualrent.
The Lords found, That the liferent of the whole means provided by the contract did exclude the relict from the property of any part; but seeing of consent she had drawn a third of the moveable sums and goods, they found she could not claim the liferent of the other two-thirds thereof; but as to the sums bearing annualrent, whereof the law gave her no share, the Lords found she had right to the liferent thereof, with the property of a third of what was simply moveable.
