Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Margaret Hamilton v. Margaret Lockhart and William Martin
Date: 9 January 1700
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Whitelaw reported Margaret Hamilton, relict of Lockhart of Harwood, against Margaret Lockhart, heiress of Harwood, and William Martin her husband. There being 110 contract of marriage betwixt the said Margaret, daughter to Monkland, and Harwood, he grants an obligement on death-bed, at least holograph, whereby he obliges to infeft himself and her in an annuity of 600 merks per annum out of his lands; and, in case he die before that be done, then he burdens his heir with that and sundry other conditions, and discharges thèm to intromit till she be paid. He dying, without recovering or obtaining himself infeft, his relict intents a declarator against his sister and heiress, and her husband, bearing, that she is a creditor on the foresaid obligement: and, by the late Act of Parliament 1695, where one has possessed three years, his next apparent heir must fulfil and pay all his debts and obligements; and that Harwood was more than seven years in possession before his death, and therefore his sister and heir must implement his obligement; and the least they will be liable in is for a terce of the estate; to which she restricts herself.
Alleged,—The Act of Parliament was never intended for extending women's liferent-provisions, or the legal obligement of terce, but for conventional debts, else the contracts of marriage of apparent heirs, and all their engagements, may fall upon their apparent heirs; which will occasion an infinite disorder, and pleas. 2do. It is now turned to a fixed principle in the Scots law, that a wife can claim no terce except in lands wherein her husband died last vested and seased; whereas Harwood was never infeft in any of his lands; ergo no terce. 3tio. The obligement founded on is both holograph, and so presumed to be on death-bed; and, de facto, was so, and cannot bind his heir.
Answered,—The Act of Parliament makes no distinction, but makes them liable for all their predecessors' deeds who were three years in possession. To the second,—Though, regulariter, no terce is due but out of lands wherein the husband died infeft, yet this rule has its own exceptions; for, by the 2d book of Reg. Maj. cap. 16. sec. 3. 4. et seq. it is declared, that all men, by the canon and civil law, are bound to provide their wives in a competent dowry. And Skeen, in his learned notes, there confirms it by authorities of law, which sustained them, though they were not settled by the contract antecedent to the marriage, but even after, and so called donationes propter nuptias; and King Alexander II. in his Statutes, cap. 9. et cap. 22. sec. ult. decides the case, That she must have a jointure, though her husband were never infeft in the lands. Craig comes after, and, Book 2. Dieg. ult. states two cases, where a terce may be due, though the husband was never infeft: and Stair, tit. Of Liferents, agrees with Craig, and thinks the wife may prevail in a declarator: and Hope, in his Major Practiques, gives an instance, betwixt the Laird and Lady Dunlop, where a husband's provision of a liferent to his wife on death-bed was sustained: as also Craig, page 85. and Dirleton, in his Decisions, 21st January 1668, Shaw against Calderwood. And what hinders a man to serve himself heir on his death-bed, and procure himself infeft? which validates all the obligements and deeds he granted, though they would otherwise have evanished as null: Even so here. As to the third, Though the obligement be holograph, yet there want not cases where law dispenses with solemnities; as a testament inter liberos needed not the formality and number of witnesses of other testaments; missives and bills of exchange are sustained inter mercatores, for the good of commerce; even so writs inter domesticos are not to be regulated by the formalities of other contracts.
Replied,—The decisions from Regiam Majestatem, (though it were our law, as it is not,) and King Alexander's Statutes, were but in particular cases, and not general laws, and are sufficiently convelled and destroyed by other places in the same book; as appears from that same 16th cap. sec. 5. 14. and 15. and cap. 18. where no husband on death-bed may settle a jointure upon his wife: and so it was found and confirmed by the Lords, Dury, 1st February 1622, Robertson against Fleming. And what Craig and Stair speak are but rational proposals to be the matter of an Act of Parliament; and, though such a statute were made, it could not look back to preterite cases; and their overtures are only to obviate fraud, where dispositions are made to anticipate the terce, or an heir wilfully lies out from entering, that his wife may be cut off from her legal terce; but nothing of that can be subsumed here. And whatever obligations may be on husbands to provide their wives, or relaxation as to the solemnities of’ such writs, is but at most obligatio naturalis, and has no civil or compulsory effect: even as the tie of providing younger children is bound on parents, both by the laws of God and nature; yet, where a father on death-bed had given but a very moderate provision to the second son, the Lords refused to sustain it, being quarrelled by the eldest son, in a reduction ex capite lecti, 1st July 1637, Riddle against Richardson: even as the undetermined obligation of giving charity can compel none to give it.
The Lords thought this case of a terce, and the Act 1695, was new, and deserved to be heard in their own presence.
