Deeds in favour of a Wife or Child, whether presumed in satisfaction of their legal Claims.
Douglas, Heron, and Company v. Mary Cant
Date: 29 July 1783 Case No. No 136.
Whether the delivery, sine arbitris, of a bond of provision, by a husband to his wife, imports a dereliction of her legal provisions.
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Mrs Mary Cant was the wife of William Hay, of whom Douglas, Heron, and Company, were creditors.
Soon after her marriage, her husband, delivered to her privately a bond for an annuity, payable to her in the event of her survivorship. This bond she retained in her custody until his death; which, however, was the only circumstance whence her acceptance of the provision could be inferred.
Her husband died possessed of a landed estate then unincumbered by any heritable security; leaving debts, however, with which it became afterwards affected, to an extent beyond the value of his whole funds. As by virtue of the bond, therefore, she could have recovered nothing, she was, several years after her husband's death, served to her terce, and then demanded her proportion of the rents of his lands. To this claim the creditors objected, and
Pleaded, The bond in question, an irrevocable deed, undoubtedly became effectual from the moment of delivery by the granter, and of acceptance by the grantee. Mrs Hay was thus vested with a right, of which her not chusing to exercise it did not dispossess her; and of which, the effect is, on the one hand, to entitle her, as a personal creditor of her husband, to a conventional provision; and, on the other, to bar her claim to the legal provision of terce. In a different situation of her husband's affairs, in which she might not have been precluded by the heritable securities of creditors, she would have resorted to this bond with advantage; and in the event of his having sold his lands, she could not have looked for a provision from any other source. Her husband's onerous creditors must then have submitted to her claim. As matters now stand, the operation of the bond is in their favour; and Mrs Hay, in her turn, must of consequence yield her pretensions to the terce. For surely it cannot be maintained, that no effect is to be given to that deed, except such as is prejudicial to the creditors, and advantageous to Mrs Hay.
Answered, Mrs Hay has not done any act which could infer homologation of the bond in question. The circumstance óf her simply receiving it from the hand of her husband, without offending whom, perhaps, she could not have done otherwise, is certainly not such. Thus far a regard to her duty must have enforced her compliance; and it would be hard were her reward to be the forfeiture of her legal claims.
The Court distinguished between formal marriage contracts entered into with the advice and assistance of the friends of the parties, and private unadvised deeds, such as the one in question. Should these last, it was observed, have an effect, like the former, to the exclusion of the legal provisions, hurtful consequences might often ensue from the peculiar circumstances of persons entering into the married state. In this case, too, it was added, the creditors had no reason to complain of any deception being practised upon them.
The Lords, on report of the Lord Ordinary, ‘found that Mrs Hay was not barred from claiming her legal provision of terce by the bond of annuity above mentioned.’
Lord Reporter, Braxfield.For Douglas, Heron, and Company, Blair.Alt. Wight.Clerk, Robertson.
Fol. Dic. v. 4. p. 124. Fac. Col. No 116. p. 181
