Subject_1 HUSBAND and WIFE. Subject_2 DIVISION III.
Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. I.
Husband bound to aliment and provide for his Wife.
Jean Lisk, and her Curator ad litem, v. Her Husband and his Creditors
Date: 22 November 1785 Case No. No 103.
An aliment found due to a wife out of the produce of a terce derived from her first husband, in a question with her second husband's creditors.
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Jean Lisk was the widow of a gentleman, at whose death she became entitled to a terce out of his lands, amounting to L. 600 yearly.
She was afterwards induced, by fraud and deception, to marry a person who had long been in a state of bankruptcy. His creditors, in virtue of a sequstration, took possession of his effects; and Mrs Lisk, after endeavouring in vain to withdraw altogether the rents of her terce-lands*, insisted for a yearly aliment out of that fund.
Pleaded for the Creditors of the Husband; The legal consequences of this marriage, though it was brought about by improper means, have been found to subsist in their fullest extent. The whole moveable effects antecedently belonging to the pursuer, together with the yearly produce of her real estate, are thereby fully vested in her husband. She cannot now pretend to a greater interest in the rents of her terce-lands than in any other part of his property. On the other hand, the marriage-state alone, independent of some peculiar stipulation, gives no support to a demand like the present. A wife's claim to an aliment must, in every case, bear proportion to her husband's immediate means of subsistence. When his estate has been squandered away, or, by the act of law, transferred to his creditors, her situation, however calamitous, admits not of any legal remedy; 25th November 1709, Turnbull, No 108. p. 5895. From a contrary doctrine, indeed, very irregular consequences would follow. Thus, if the present claim were sustained, it would unavoidably happen, that either the pursuer's husband would indirectly obtain from his creditors an aliment, to which he has no right; or to the extent of the allowance due to him by his wife, which, at every period, must be a share of what she has, his creditors would be at liberty to resume the funds destined to her.
Answered; The circumstances of the husband, it must be owned, are the sole measure of the maintenance due to his wife, when considered merely as a member of his family. But when she happens to be possessed of such an estate as does not fall under the jus mariti, though its annual profits during the coverture are subject to his administration, the case is very different. Here the husband's right is by the law itself incumbered with a suitable maintenance to his wife. He cannot avail himself of the one, without becoming liable to the other; nor can the case of his creditors, as brought into his place, by diligence merely of a personal nature, be separated from his own; 14th November 1770, Mary Jamieson contra Isabella Houston, No 109. p. 5898. The confusion supposed to arise from such a determination in the present case can never happen, as the sums found due to the pursuer will be rendered independent of her husband's jus mariti.
Some of the Judges, who thought the claim well founded, seemed to rest their opinion chiefly on the circumstances of deception in which this marriage had originated. The majority, however, considered it to arise, from the nature and situation of the pursuer's estate. By our ancient law, it was observed, the jus mariti was thought to be of that nature which no covenant could control
* See No 7. p. 4865.
or diminish; and while this notion prevailed, such a claim as the present could not be admitted. But those rigid maxims have since been justly exploded. A woman, vestita viro, is now enabled to maintain every suit against her husband which is requisite for effectuating the obligations he has come under to her. As, therefore, in a question with the husband, the pursuer would have been entitled to an aliment corresponding to the produce of her own estate, this being necessarily implied in the legal assignation of her property, which results from the marriage; so the intervention of his creditors should not here make any difference.
By one interlocutor, the Lords found ‘the pursuer entitled to an aliment during the subsistence of the marriage; and that the same, as being merely alimentary, is exclusive of her husband's jus mariti, and debts of all kinds preceding the commencement of her present aliment; and modified the same to L. 200 Sterling.’ On advising a reclaiming petition for the Creditors, with answers for Mrs Lisk, the sums formerly awarded were restricted to L. 150, Sterling.
Lord Ordinary, Ankerville.Act. H. Erskine, Wight.Alt. Lord Advocate, Abercromby.Clerk, Orme.
Fol, Dic. v. 3. p. 288. Fac. Col. No 236. p. 365.
*** This judgment having been appealed from, the matter was compromised.
