A revocation of a donation, found not to operate, until founded ed on, in questions relative to bygone annuities.
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My Lady Kinnaird, by contract of marriage with the late Earl of Aboyne her first husband, is provided to a liferent of 5000 merles, which the Lord Kinnaird her present husband, with her consent, did assign in favour of Mr William Black, his heirs and donatars; and by a mutual obligement betwixt my Lord and him, the onerous cause thereof' is declared to be for the entertainment and aliment of my Lady; Which assignation was thereafter revoked by his Lordship as a donatio inter virum et uxorem. Thereafter Mr Black transferred the foresaid right in favour of Badenscoth elder, his heirs and assignees; and now the son, who is both heir and executor to his father, with concourse of my Lady, having charged Gordon of Inverebry as factor to the estate of Aboyne, and as personally decerned against in foro, as intus habens, in a former process at the instance of Mr Black, for payment of bygone annuities, and in time coming during his intromission, Inverebry. suspends, and the question arising, Whether the charger, having my Lady's concourse, hath sufficient title to exoner the suspender, notwithstanding of my Lord's revocation?
It was objected by the defender against the charger's title, 1mo, That the right, to Mr Black being only a trust, it was personal and could not be assigned. 2do, That as such it could not be in bonis defuncti, the trust having died with Old Badinscoth, and therefore the charger could not make up a title thereto, either as heir or executor to his father. 3tio, That the charger is a Papist, and therefore, by the 3d act, 9th sess. King William's Parliament, he is incapable to succeed to any body, or to be factor or chamberlain. 4to, My Lord Kinnaird having revoked the very assignation in favour of Mr Black for my Lady's behoof, as being donatio inter virum et uxorem, it cannot now subsist, even though my Lady concur.
Answered for the charger to the first, That the right, though granted in trust, is not only in favour of Mr Black, but likewise of his heirs and donatars; and Mr Black's translation to old Badinscoth, runs in the same strain; which also answers the second objection. To the third answered, That the original trust was not conceived in favour of the present charger, but first of Mr Black, and then of the late Badinscoth, who were not Papists; so that only per accidens the trust was devolved upon the charger; and therefore, notwithstanding the act of Parliament, the Lady might very well oblige the charger either to renounce to be heir to his father, or enter, and thereby establish proper titles in his person, in order to denude himself, or obtain payment for her behoof; specially seeing the next Protestant heir was not compearing for his interest. To the fourth answered, That the Lord Kinnaird being to go abroad, it was a duty incumbent on him by the law of nature, and as a Christian, to settle upon his Lady a competent provision for her aliment; and therefore this settlement was not a gratuitous, but most onerous deed, specially since it was but moderate, and not out of my Lord Kinnaird's estate. For that a husband can constitute an aliment to his wife, is plain from the opinion of our lawyers, particularly Lord Stair, who B 1. Tit. 4. § 9 says, “That alimentary provisions are so personal to the wife, that inhærent ossibus, and recur not to the husband or his creditors, though constituted by the husband.” Thus, also Lord Direlton in his Doubts voce Alimenta, speaking of an aliment once constituted, says, “Mirum igitur advocatos primi ordinis tanto conatu et boatu summa ope annisos, ut judicibus persuaderent, aut imponerent, asserentes alimentum uxori constitutum juri mariti obnoxium esse; quod enim ossibus hæret; nec a persona cui competit avelli, aut alienatio potest, illud nec juris ministerio, aut fictione transfertur.’ Where also he cites a decision observed also by Lord Stair, 13. July 1677, the Lady Darsie contra the Laird of Darsie, voce Mutual Contract, where the Lords found this, though there the husband did not renounce expressly the jus mariti, and the aliment was out of his proper estate, and he himself destitute of an aliment; none of which took place in the present case, which therefore must be much stronger; the reason whereof is, that by the constitution of the aliment the husband is fully denuded; as the Lords have also found in a parallel case betwixt the Laird of West-Nisbet and the Laird of Moriston, 27th March 1627, voce Personal and Transmissible.
The Lords repelled the objections against the charger's title, and found my Lady Kinnaird hath right to all annuities due, preceding the revocation by my Lord, and until the same was founded upon, the sums now charged for being appropriated for an aliment to my Lady; and found the revocation could not exclude her Ladyship, in so far as concerns a suitable aliment, since it was made use of, and in time coming, during their separate abode.
Act. Arch. Ogilvy.Alt. Ro. Dundas.Clerk, Mackenzie.
Fol. Dic. v. 1. p. 412. Bruce, No 62. p. 75.
