Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

Mrs Forrester, alias Elizabeth Sommervell,
v.
Bell

Date: 26 Febuary 1751
Case No. No. 26.

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A deed was executed by a husband dated 28th April 1744, in favour of his wife, to whom he was married December 1743, on the narrative that there was no marriage contract, but certain verbal conditions providing 12,000 merks to her in liferent in case of her survivance, and to the bairns one or more to be procreated of the marriage in fee, whom failing, to the wife; and likewise providing to her his household furniture; and for her further security making over a plantation in Jamaica; which provisions were declared to be in satisfaction of all terce of lands, half or third of moveables, and containing a clause dispensing with the not delivery;—and of the same date a testament was executed by the wife with his consent of her own fortune in favour of her other friends. The husband having died a few days after, and having been on death-bed, and as was said given over by the physicians; the question was, whether the marriage having dissolved within year and day, this was to be considered only as a marriage settlement as granted intuitu matrimonii, or if it might not in these circumstances be sustained as donatio mortis causa, or if it did not imply a dispensation with the marriage subsisting year and day, where there was no probability at the date of the deed of his living eight or ten days? But as the deed did not mention death-bed or his sickness, on the contrary provided for bairns one or more to be procreated; and though he was sick, yet we could not know that he thought himself on death-bed; therefore we adhered to Lord Minto's interlocutor reducing the bond.—26th February 1751, adhered.