Renunciation of the jut mariti in a postnuptial contract, not revocable as a donation.
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Ann Colquhoun, widow of Duncan Graham, second son to Graham of Duchray, intermarried with Alexander M'Pherson, without any contract of marriage; and he having nothing to provide her in, did, upon that narrative, by a postnuptial deed, renounce in her favour, and in favour of the children of the marriage, his jus mariti, whereby he was entitled to the liferent of the annualrent of 5000 merks, in which she was secured by her contract of marriage with Duncan Graham her former husband; which the heir of the said Duncan Graham did, during the subsistence of the marriage between the said Ann Colquhoun and M'Pherson, pay, partly to them, and partly, with M'Pherson's consent, to the children of the said Ann by her former marriage.
The marriage having dissolved by the death of Ann Colquhoun without children, M'Pherson, with a view to dispute the payments made to the children of the said Ann, and the effect of his own renunciation, brought a process against the heir of Duncan Graham, for the resting annualrents of the 5000 merks, to which he claimed right jure mariti.
And the Ordinary, before whom the question came, found ‘That his renunciation was, so far as concerned the wife, a donation inter virum et uxorem two years after the marriage, and as such revocable, and revoked; and found the defender liable to account to him for the said annualrents.’
But, upon advising a petition against this interlocutor, with the answers thereto, the Lords found, ‘That the renunciation was not a donation inter virum et uxorem, and as such revocable; but found, that it did not import a discharge to the debtor; and remitted to the Ordinary to proceed accordingly.’
The Lords were of opinion, That a man's renouncing his jus mariti in a certain subject, even by a postnuptial settlement, (where there was no settlement formerly made by him) in favour of his wife, or, as in this case, in favour of her and the children of the marriage, is an onerous settlement which he cannot revoke; but then still the debt was due, and whether to the wife's heirs, other than the children of the marriage, or to the husband himself, notwithstanding his limited renunciation, was the question; and it seemed to be the opinion of the Court, That there being no children of the marriage with M'Pherson, so far as was unpaid to the wife, it would belong to him.
Fol. Dic. v. 3. p. 288. Kilkerran, (Husband and Wife.) No 16. p. 268.
