Pure Donation how far Revocable. Donation after Proclamation of Banns.
Foggo v. Watson
Date: 1 December 1769 Case No. No 314.
A husband and wife granted a joint discharge of stipulations in their contract of marriage. Found revocable as donation.
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By contract of marriage between Mr James Watson, one of the ministers of Canongate, and Anna Foggo, daughter of Walter Foggo, it was stipulated, that L. 300 Sterling should be paid to Mr Watson in hand, and L. 200 more at an after period; which sums were accepted, in full of all that could be asked or craved, by and through Walter Foggo's death.
When Mr Foggo died, it appeared, that each of his children would draw considerably more than L. 500, on an equal division; and a contract was entered into, whereby Samuel, Katharine, and Janet Foggos, the three younger children, on the narrative, “That they were sensible, that it was the inclination of their father to have made his eldest daughter equal with his other children,” became bound to pay L. 85 Sterling each, to Mr James Watson, his heirs or assignees; and, on the other part, Anna Foggo, and James Waton granted a joint discharge for their several rights and interests.
Upon Mr Watson's death, his relict executed a revocation of her husband's right to the sums stipulated to be paid by her brother and sisters, upon the ground, that the claim to an additional share of her father's effects, was a right competent to herself, and not to the husband; and therefore, that the allowing the sum to be taken payable to him, was a donation inter virum et uxorem.
Answered; After the discharge in Mrs Watson's contract of marriage, she had no right to any farther share of her father's effects. Though, therefore, Mr Watson may be said to have received a donation, it was not received from his wife, but from her brother and sisters. Mrs Watson could not convey to her husband a right which was not in herself; and it is an established principle, that nothing can be considered as a donation, which does not take from the person supposed to make it. See L. 5. § 13. L. 28. § 2. L. 31. § 7. D. de Donat. int. vir. & ux.
‘The Lords found, that as the pursuer, and her deceased husband, in their contract of marriage, accepted of the tocher therein contracted by the pursuer's father, in full of all they could ask of him; so the grant made afterwards to the pursuer, was no other than a donation upon the part of the mother and younger children; and that, as they made it directly to Mr Watson the husband, so he owed it entirely to their generosity, and the regard it would appear they had for him, and not to the pursuer, though her being Mr Watson's wife probably was the origin of the connection; and therefore sustain the defence and assoilzie the defender.’
