Scottish Court of Session Decisions

Subject_1 CLAUSE.
Subject_2 SECT IV.

Clauses in Contracts of Marriage.

Margaret Garden, Relict of Gilbert Stewart, Merchant in Edinburgh,
v.
John Stewart, &c Representatives of the said Gilbert.

Date: 19 February 1743
Case No. No 27.

It was provided, in a contract of marriage, that the special provisions which the wife accepted of in full, should remain effectual, altho, the marriage should not subsist year and day. It did not subsist so long. She was found entitled to aliment and mournings, besides her special provisions.

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The said Gilbert Stewart having married Margaret Garden, he, by a postnuptial contract, provided her in L. 30 of annuity, in case she survived him, and, in the same event, he obliged himself to pay her 1000 merks for her share of the household-plenishing; which provisions she accepts “in full of all she and her nearest of kin can claim, or demand for terce of lands, third or half of moveables, executry, and others whatsomever, from the said Gilbert Stewart,” &c. After which she assigns him to a jointure she had by a former marriage. And then follows this clause, “And both parties agree and declare, that these provisions on both sides shall stand in full force, notwithstanding the marriage shall dissolve by the death of either of the parties, within year and day, without a living child.” Gilbert died about seven weeks after the marriage; whereupon she brought a process before the Commissaries of Edinburgh, for alimenting the family until the next term, and for mournings. The Commissaries “found her entitled to mournings, and to the maintenance of the family, and allowed a proof of the same, reserving modification.”

The Representatives offered a bill of advocation, and pleaded, That it was a fixed principle in our law, that when the marriage dissolves within year and day, &c. every thing returns hinc inde. It is true, that of later years, practice has prevailed, of dispensing with the law in this particular, by a special, proviso; but where no such provision is made, the law stands as it did. Upon the same principle, it must be admitted, that it is optional for the parties to dispense with the same, in whole or in part. If the dispensation be total, the provisions, whether legal or conventional, must take place in their full extent, as if the marriage had subsisted beyond the year: if but partial, the dispensation will have its full effect, so far as the paction goes, and no further. To apply these observations to the case in hand; it does not appear from the above contract of marriage, that there is any such proviso in it, as that, in case of the dissolution of the marriage within year and day, the party surviving should be intitled to every provision legal or conventional, competent by law, as if the marriage had not been so dissolved; on the contrary, the proviso is most special and limited, that the particular provisions as covenanted hinc inde in the marriage contract, shall stand in full force, notwithstanding the marriage dissolve within year and day; so that the dispensation is plainly so circumscribed, as to reach no farther than the special provisions contained in the contract; and therefore, as to every other particular, the law stands as it did. It is submitted, therefore, if the relict is not debared from any such claim by the express words of the contract whereby she accepts of the provisions therein specified, “in full of all that she or her nearest of kin can claim or demand for terce of lands, third or half of moveables, and others whatsomever,” &c. Are not the particulars, now insisted for, a claim which she makes against her husband's estate? and if such, are they not especially excluded by the express words of the above clause?

The Lords refused the bill of advocation.

Fol. Dic. v. 1. p. 127. C. Home, No 231. p. 377.