Whether Liferent Provisions to Wives stante matrimonio be revocable.
The Lord and Lady Lindoris v. Sir James Stewart of Burra
Date: 18 February 1715 Case No. No 342.
Found in conformity with Short against Murray, No 341. p. 6124.
Click here to view a pdf copy of this documet : PDF Copy
The deceased Sir Archibald Stewart of Burra having no contract of marriage with his Lady, dispones to her, a little after the marriage, the liferent of his whole estate, and the property of all his money and moveables; but six years thereafter, he makes a new settlement far short of the former, upon which she was infeft. She now, with concourse of the Lord Lindoris her present husband, pursues Sir James Stewart her son, for implement of the first disposition.
Answered for the defender; That the first disposition never came to be a binding obligement upon the husband till delivery, it being always in his power to cancel and destroy it; and, by the parity of reason, to alter or diminish it by any subsequent deed.
Replied for the pursuers; That there can be no dispute in this point, not only by reason that the husband is custodier for the wife during the marriage, but that the nature of the writ is such, as could only take effect upon the decease of the husband, and therefore the writ was once a fair constituted obligement betwixt them, whether delivered or not. Nor could he any more conceal it, than he could a contract of marriage, it being donatio propter nuptias, which comes in place of a contract, and has the marriage itself and the natural obligation on the husband to provide his wife, for the cause thereof, which is certainly onerous. 2do, By our constant practique, such provisious have been found irrevocable; as 28th March 1635, Lady Lauriston contra Lady Dunipace, No 346. p. 6132., where the Lords expressly found, That tam dos quam donatio propter nuptias, might be constituted between man and wife after marriage; and which being so constituted was not revocable, being done in competency of proportion. Which decision further determines, that where there was once a prior bond made betwixt the married persons, that behoved to be reputed in place of a contract of marriage.
The Lords found the bond of provision, though lying by the granter the time of his decease, not revocable, except in so far as it exceeded a competent provision.
Act. Lord Advocate et Graham.Alt. Nasmith et Ferguson senior.Clerk, Mackenzie.
Fol. Dic. v. 1. p. 411. Bruce, v. 1. No 78. p. 94.
