Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HUSBAND AND WIFE.
Subject_3 Donation by a Wife's Relations to the Husband, not revocable by her.

Anna Foggo
v.
Adam Watson

Date: 1 December 1769

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[Faculty Collection, IV. p. 152; Dictionary, 6, 102.]

Hailes. Of the opinion of the interlocutor. I do not see how there could be a donation, here, of what did not belong to the pursuer. Her right, according to her own account of it, was nothing more than what she calls a “good claim of good will,”—which is not a right known in law.

Monboddo. The quotations from the civil law are properly applied. The law is not so invidious as to prevent the husband from becoming richer when the wife does not become poorer: here the wife did not become poorer, for she had no antecedent right to the subject.

Coalston. The law strikes at all donations between man and wife, whether direct or indirect. I admit that the wife was not a creditor in a clear obligation; but she was understood to be creditor in a natural obligation. The other children considered themselves as bound to fulfil the intentions of the father. It is no matter whether the claim be good or not. If the wife discharges a doubtful claim, and that is conveyed to the husband, it will be held a donation, and the Court will not examine into the merits of the claim.

Gardenston. If the father had made the addition to the daughter's provision, then the husband would have had it. The children have done what the father might have done, and granted the money to the husband. How can we invert this, and grant it to the wife?

Justice-Clerk. From considering the contract of the 20th March 1758, I doubt as to the interlocutor. It is the same thing as if the children had previously agreed to make up the sum to Mrs Watson, and that she had agreed that it should be transferred to her husband. The quotations from the civil law do not apply; for there the act of donation proceeded from the testator, and therefore nihil defuit to the wife. My opinion does not go to the bill for L.85 granted by the mother; for she was under no natural obligation, and was not a party to the transaction, 20th March 1758.

Kaimes. There seems nothing in law or in equity against the interlocutor. I should admit that a claim which the wife had, if conveyed to the husband, might be held a donation; but that is not the case here. There was no natural obligation in favour of Mrs Watson: she had ab ante discharged her. Thomas Foggo thought there was no natural obligation, for he would not accede to it: the youngest sister thought there was no natural obligation, for she revoked her consent. This was no more than a present made. We cannot alter the nature and terms of the present, and give to Mrs Watson what her own family voluntarily gave to Mr Watson.

Barjarg. It does not appear that the husband's heir is taking any thing by the deed of the wife: the discharge was unnecessary on the part of Mrs Watson, for there was no previous obligation to be the subject of a discharge.

President. The case seems plain, and there is no hardship in it. It was understood by the parties, that the addition should go in the same way with the original tocher; and as they understood, so they executed.

On the 1st December, 1769, the Lords found, “That, as the pursuer and her husband, in their contract of marriage, accepted of the tocher therein contracted for by the pursuer's father, in full of all that they could ask of him, the father, the grant made by some of the pursuer's sisters and brothers, and by Mrs Foggo, though devised in form of a contract between them and the pursuer and her husband,—in fact was no other than a donation upon the part of the mother and younger children: and as they made it directly in favour of Mr Watson, the husband, so that he owed it entirely to their generosity and the regard, it would appear, they had for him; and did not owe it to the pursuer, though her being Mr Watson's wife was probably the origin of the connexion; and therefore sustained the defences, and assoilyied the defender;” adhering to Lord Auchinleck's interlocutor.

Act. W. Nairne. Alt. R. Blair, H. Dundas.

Diss. Justice-Clerk, Coalston.

Non liquet, Pitfour.