Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESUMPTION - HUSBAND AND WIFE.
Subject_3 Donatio inter virum et uxorem, and implied revocation thereof by a posterior deed.

Robert Scott of Logie
v.
Margaret Scott

Date: 24 July 1770

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll., V. 95; Dictionary, 11,367.]

Hailes. The defender makes a merit of two things: first, That she induced her husband to settle his estate on the pursuer: this was a matter in which she had no business to meddle. Secondly, That she did not abstract the deeds in her husband's repositories: this was a matter wherein, if she had acted otherwise, she might have been set on the pillory. I do not see any delivery at all, or any proper donation. Logie amused himself in making deeds,—while undelivered, they were nothing. It would be dangerous to say, that, when a donation is executed by a husband to a wife, the husband's repositories are to be considered as the wife's repositories; for this would be to make a donatio inter virum et uxorem necessarily delivered whenever made.

Auchinleck. The defunct has been very uxorious. Some of the deeds executed by him were most irrational, particularly the liferent which he granted of the mansion-house. When he came to make a final settlement, he assigned the maills and duties to his disponee, and he reserved certain settlements in his wife's favour. I cannot think that all the deeds in his repositories are to be considered as still subsisting.

President. The deed of settlement is the ultima voluntas. Logie may have made various destinations before, but that is the final result of all his destinations.

Coalston. If the last settlement had kept in generals, without mentioning any particulars, there might have been difficulty; but here there is a special reservation of all that Logie meant to bestow on his wife.

On the 24th July 1770, “The Lords sustained the reasons of reduction.”

Act. A. Lockhart. Alt. J. Scott. Reporter, Gardenston.