Supposing the intention of benefiting, in what cases Recompence due.
Leishman v. The Children of Nicol
Date: 16 July 1696 Case No. No 10.
Where a woman had consented to the tale of her jointure at the entreaty of her second husband, who received the price, she was found entitled to a recompense out of his estate.
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Halcraig reported Christian Leishman against the children of Harry Nicol writer to the signet, who convened them on this ground; that she being married to their father, and having a jointure of 600 merks, from a former husband, she consented to her second husband's selling the same, whereby she is now prejudged, he being dead, and had left her little or nothing; therefore she having revoked her consent as donatio inter virum et uxorum, she ought to have an equivalent liferent secured to her out of her husband's estate. The Lords found such a revocation could not prejudge the purchaser of her jointure, a singular successor not being concerned therein; but seeing the writ bore, he received the price, they thought it reasonable, that she should be indemnified by an equivalent remuneration out of his estate; for though the natural obligation of gratitude produces no civil coactive effect, yet this being a pure donation, and revoked, both from the principles of the common law and ours, it obliged him and his heirs to remunerate. See 28th June 1675, Arnot contra Scot, No 303. p. 6091.; and 22d January 1673, Watson contra Bruce, No 344. p. 6129. Yet, on the other hand, she having renounced and judicially ratified, and craved no additional jointure in lieu thereof, it seems not to have been the design or meaning of parties, that she should have any. See Vis et Metus.
Fol. Dic. v. 2. p. 317. Fountainhall, v. 1. p. 729.
