Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JUS RELICTÆ - HUSBAND AND WIFE.
Subject_3 Power of the husband over the goods in communion does not authorise him to execute a deed, with the evident design of disappointing the relict's legal claims.

Thomas and Andrew Sorlie
v.
Elizabeth Robertson

Date: 5 December 1771

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[Faculty Collection, V. p. 338; Dictionary, 5947.]

Pitfour. I understand the deed to have been delivered, and irrevocable; yet I think that the wife cannot be deprived of her legal provisions and beggared by this device.

President. The deed was gratuitous, obviously and avowedly calculated to defeat the widow's claim.

Hailes. I add, proceeding upon a false narrative of an obligation in which the husband was not really bound.

Monboddo. This deed is, in so far, a testamentary deed, that it does not take place till after the death of the granter; at the same time, it is not a testament because irrevocable: but it is a gratuitous deed, and must come off the dead's part. A man cannot be allowed to make deeds of this kind, to the effect of impairing the legal claims either of wife or of children.

Kaimes. I can conceive many deeds not to take place till after death, and having an obligation of warrandice, and yet good against the wife; this is one of the few cases of civil right where intention is to be considered: the intention was not so much to honour the brother as to disappoint the wife. The cloven foot appears throughout.

On the 5th December 1771, “The Lords found that the deed can only affect the dead's part.”

Act, D. Græme. Alt, D. Smyth. Rep. Pitfour.