Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. X.
The Onerosity of Provisions in Favour of a Wife.
Sir Roderick M'Kenzie of Scatwell v. Christian Monro
Date: 17 February 1738 Case No. No 76.
A wife being disappointed by the diligence or creditors, of her jointure, for which her husband had teen only personally bound, is found entitled to the benefit of an infeftment, given to her by her husband during the marriage, bearing to be, over and above any former provision,' which would have been gratuitous, had the jointure been made effectual.
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In a marriage contract, the husband, by a personal obligation, provided his wife to a jointure of L. 180 Scots yearly, and also to the sum of L. 1000 Scots, failing children of the marriage; during the marriage he infeft his wife in a tenement of L. 10 Sterling of yearly rent, bearing to be, “over and above any former provision made in favours of his spouse.” The husband having died insolvent, his creditors raised a reduction of this infeftment, upon the first head of the act 1621, as being gratuitous: The relict acknowledged she could not hold both the personal provision and the infeftment; but observed, That the case would be hard if the creditors, who had cut her out of her personal provision, by preventing her in diligence, should be allowed to turn these provisions against her, in order also to cut her out of her liferent infeftment; and therefore answered, That as a reasonable provision granted stante matrimonio, to a wife not otherwise provided, would be effectual though the husband were insolvent at the time; so the present infeftment, though designed as a gratuity, turning out to be no other than a reasonable provision, is not reducible; gratuitous it cannot be said to be, with regard to the relict, who throws up every other claim against the husband and his creditors——The Lords found the wife's infeftment is not reducible upon the act 1621.
