Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Robert and John Gillises
v.
Jane Stuart

1686. January.

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A husband having, several years after his marriage, provided his wife (with whom he had made no contract,) to the liferent of a tenement of land, without any clause in satisfaction of terce and third; and, thereafter, having provided her to 3000 merks of his personal estate, and to a liferent of the rest, in satisfaction of the terce and third, and there happening to be no children of the marriage, the relict claimed the half of the personal estate. Alleged for the defender, That she could not have both a liferent of the tenement and the half of the personal estate; because, 1. The infeftment being before the late Act of Parliament, it imported an acceptation, in satisfaction of terce and third, without necessity of any express clause to that purpose; 2. The last settlement of the personal estate was a tacit revocation of the preceding infeftment of liferent given stante matrimonio. Answered, By our law and practique, settlement of jointure upon wives, without a clause in acceptation, &c. doth not cut off the right of terce,—as was found in the cases of the Lady Eleistoun and of the Lady Craighouse; 2. Provisions made, stante matrimonio, in favours of wives, with whom no contract was made before the marriage, are not revokable as donations inter virum et uxorem. The Lords sustained the reply, and found, That the wife had right to both the liferent of the tenement and to the half of the personal estate.

Page 98, No. 377.