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.
James Lee v. The Executors of Robert Watson
Date: 1 December 1795 Case No. No 104.
When the husband's estate is sequestrated, and he absconds, leaving his wife behind him, his relations are entitled, in competition with his creditors, to retain a part of her fortune remaining in their hands, either for her aliment during the lifetime of her husband, or for a suitable provision to her after his death.
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George Lumsdain married a daughter of Robert Watson. No contract took place on the marriage; but by the family settlements, she was entitled to L. 125 from the father, on her marriage, which was accordingly paid, and to the like sum on his death.
Lumsdain became bankrupt, and he was apprehended upon suspicion of forgery. He, however, escaped from prison, and fled to Holland, leaving his wife behind him. His estate was immediately sequestrated. His wife, after having been for some time maintained by her father, went abroad, and resided with her husband for several years; but, she having become insane, he sent her back to Scotland, where, her father being dead, she was maintained by his executors.
James Lee having purchased, from Lumsdain's creditors, the prevision which he was to receive in right of his wife, on her father's, death, brought an action against his executors for payment of it.
Various defences were stated before the Lord Ordinary, which it is unnecessary to mention. They were repelled by his Lordship, and afterwards (20th May 1795) by the Court.
In a petition against this interlocutor, and in an additional petition allowed by the Court, retention was, for the first time, claimed by the executors, in relief of Mrs Lumsdain's past, and in security of her future maintenance, during her husband's life, and for a provision to her after his death. In support of this claim, they
Pleaded, In cases where a marriage contract has been executed, it has often been found, that the wife, upon the bankruptcy of the husband, is entitled to retain her fortune till the conditions of the contract are fulfilled; and to rank as a creditor for her provisions, if her fortune has been already received by him. And, for the same reason, although there is no contract, it must be implied from the nature of the thing, that a wife shall have the same security for a reasonable provision out of the fortune which she brings along with her; 27th February 1765, Corrie, No 10. p. 5772.; 10th November 1687, Creditors of Ogilvy, No 106. p. 5892.
And it is surely not more the duty of a husband to secure his wife in a suitable provision after his death, than to aliment her during the subsistence of the marriage. Her right to both is equally onerous. It is true, that so long as a wife resides in family with her husband, the law presumes that she is properly supported by him, and his obligation is modified according to his circumstances; but, if he should refuse to give her an aliment, and, for the same reason, if he should desert her, or turn her out of doors, she becomes a creditor for her maintainance. 11th June 1712, Robertson against Robertson, No 44. p. 708.; 31st Jan. 1717, Cuming against Duncan, voce Mutual Contract; 1770, Jamieson against Houston, No 109. p. 5898.
Answered, Where provisions are stipulated in a marriage-contract in return for the wife's fortune, her right of retention arises from the principle of mutual contracts, and not from any inherent right which she has to be provided for; Erskine, b. 3. t. 3. § 86. But where there is no contract of marriage, she is understood to rely on her husband's personal security, and to take her chance of a legal share of the residue of his funds, after his onerous debts are paid; 20th Jan. 1781, Woollen Manufactory at Haddington, voce Mutual Contract.
Upon the same principle, where the husband's powers of administration, and the right of his creditors, are not excluded, the husband's obligation to aliment his wife depends on his circumstances, and ceases altogether on his bankruptcy. His wife cannot rank as a creditor for her aliment after his sequestration; and as little can she, or those possessed of her fortune, plead retention on that account; Stair, b. 1. tit. 4. § 10.; Bankton, b. 1. tit. 5. Par. 20. 8th March 1639, Lord Kilkadron, voce Personal and Transmissable; 26th November 1697, and 12th January 1698, Gordon's Creditors against Gordon, Ibidem 25th November 1709, Turnbull, No 108. p. 5895.; 8th March 1774, Rob, No 110, p. 5900
The Lords adhered to the former interlocutor, repelling the defences.
Lord Ordinary, Abercromby.Act. Connel.Alt. Solicitor-General Blair, Jo. Clerk.Clerk, Home.
Fol. Col No 188. p. 455.
