Scottish Court of Session Decisions

Subject_1 PART I.

MUTUAL CONTRACT.

Dame Mary Wightman, Wife of Sir James Foulis of Collington, Bart and Mrs. Janet Wightman, Spouse to John Brown in Easter Salton, and their said Husbands, Pursuers,
v.
George Wilson, and his Tutors and Curators, Defenders

Date: 30 July 1777
Case No. No 2.

Particulars of the case No. 52. p. 9201. referred to.

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The deceased George Wilson, mason in Edinburgh, grandfather of the defender, in his contract of marriage, (7th April 1758,) with Miss Wilhelmina Wightman, his second wife, provided her, in the event of her surviving him, with £100 Sterling of jointure per annum, and the whole of the household furniture. She was likewise to have the disposal, “of the sum of £500 Sterling, payable at the first term of Whitsunday, or Martinmas, next after the decease of the longest liver of him and his said future spouse: And with full power to her to appropriate, distribute, and divide the said sum, to and amongst her children, and failing of them without lawful issue, to and amongst her other friends, and relations, to whom she shall think fit to divide, and appoint the same to be paid, by a writing under her hand at any time of her life,” &c.

On the other hand, Miss Wightman conveys the whole subjects belonging to her, to her said husband, ‘which subjects thereby conveyed, are computed to be worth at least £700 Sterling.’

The marriage dissolved in 1766, without issue, by the death of Mrs. Wilson, who had taken advantage of the faculty, contained in the marriage contract, and had disposed of the £500, in favour of Mr. Archibald Wightman, her uncle, and his heirs. George Wilson himself, did not die till the year 1776, when a demand for this £500 was made upon his heir by the pursuers, the daughters of Mr. Wightman, in whose favour the reserved faculty in the contract of marriage had been exercised.

Upon this sum being refused to be paid, the pursuers brought an action, which came before Lord Monboddo Ordinary. In defence against this claim, it was pleaded by George Wilson, that the heirs of Miss Wightman were barred, exceptione doli, from making this demand; for that this reserved faculty had been granted to her in the view of her subjects, conveyed by that contract of marriage, being worth at least £700 Sterling, as therein stated, whereas it was denied that the deceased George Wilson had ever received effects to the amount of £200 Sterling by Miss. Wightman.

The pursuers answered, that the obligations were by no means co-relative, and that whether or not the late George Wilson had received value to the extent of the £700, that still a positive obligation, in that contract of marriage, must be binding upon his heirs. And that it was impossible, that his heirs could call in question whether the defunct had received effects with his wife to the amount of £700, as he himself, during the existence of the marriage, and for ten years after it, never quarrelled that deficiency.

The Lord Ordinary pronounced the following interlocutor, (17th June 1777.) “Having considered the representation for George Wilson, &c. anwers, replies, and duplies, with the note of decisions referred to, Finds, 1mo, That provisions to a wife in a contract of marriage, are by law presumed to be made in consideration of the marriage, not in consideration of the tocher, unless there be words in the contract, from which the contrary can be inferred, which is not the case here; 2do, That the wife's whole effects, being conveyed to the husband in this contract of marriage, and computed to amount to £700, the presumption in law is, that they did amount to that sum; and as the husband acquiesced in this valuation of them, during the eight years that the marriage subsisted, the legal presumption cannot now be taken away, at the distance of 18 years, by any proof, or contrary presumption; therefore, adheres to the former interlocutor, and refuses the desire of the representation.”

A reclaiming petition was presented by George Wilson and his tutors against this interlocutor: In which they contended, that mutual contracts required implement on both sides, otherwise they cannot be enforced by the one party against the other; and that this holds with respect to contracts of marriage, appears by the following case, 4th July 1732, Creditors of Watson, where the Lords, ‘found the defence of the mutual cause of the portion not being performed, relevant to assoilzie the defender.’ No. 48. p. 9196. There are also many other cases to the same purpose, mentioned in the Dictionary, voce Presumption. When, therefore, Mrs. Wilson's funds were given up at £700, which in reality did not amount to £200, it is submitted, if this was not a deception, whereby it must be presumed, that the husband was led to give her higher provisions than he would otherwise have done; and particularly, that he gave her the disposal of £500, upon the faith and belief, that he was to get £700 with her. That although the husband never challenged this deficiency, during the existence of the marriage, yet it was no sooner dissolved in 1766, than he ordered a memorial to be laid before counsel, for advice, on account of Mrs. Wilson having made him believe that her money and effects were worth £700, when it was known to him and others, that he never touched of either above £200.

It was answered by the pursuers, That there is every reason to presume, that the effects received by Mr. Wilson, in consequence of his marriage with Miss Wightman, amounted fully to £700. But whether it did, or did not, it is impossible to prove at this late period, and after the death of both parties; and therefore as Mr. Wilson, neither during the marriage, nor for the ten years which he lived after it, ever took the proper means of challenging the deficiency, the sum mentioned in the marriage contract must be held as paid, presumptione juris et de jure. But even supposing that Mr. Wilson had not received the whole of the £700, nor indeed any part of it, Mr. Wilson became bound absolutely to pay £500, in contemplation of the marriage, which was of itself a sufficient onerous cause, as every husband is bound to provide property for his wife; and which excludes all idea of this £500 being relative to or commensurate with the sum, at which her effects are computed in an after clause of the contract. It was never asserted on the part of the wife, that her effects were of a certain value. It is only said, that they were computed to be worth at least £700. Now the very expression in itself implies uncertainty, and if the provisions Mr. Wilson intended for her were to be regulated or influenced by the value of that computation, he ought to have made the proper enquiries with regard to it. Although Mr. Wilson had married Miss Wightman without a six pence, still he might have given her, with great propriety, the whole stipulations mentioned in the contract. They cannot therefore be supposed, in the least degree, to depend upon the extent of the value of the subjects received by her. The present case is entirely different from those founded on by the defenders. For in those cases there had been a specific sum contracted for, which was not the case in the present.—The Court upon advising this petition with answers, adhered to the Ordinary's interlocutor, and allowed expense of extract.

Lord Ordinary, Monboddo. Act. M'Laurin. Alt. J. Campbell.