Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. XIII.
The Onerosity of Provisions made in Postnuptial Contracts.
The Creditors of Walter Fergusson v. Mrs Catharine Swinton
Date: 2 February 1796 Case No. No 109.
An annuity granted by a husband to his wife after insolvency, and by a postnuptial contract of marriage, reduced in so far as it exceeded a rersonable provision.
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In 1782, Walter Fergusson, writer in Edinburgh, married Mrs Catharine Swinton, a lady of a respectable family, by whom he got a fortune of about L. 1600 Sterling, besides a yearly revenue of L. 84: 12: 6, arising from property not falling under the jus mariti.
No contract was entered into at the time of the marriage, but by a postnuptial one in 1789, Walter Fergusson, after he had become insolvent, settled a jointure of L. 160 upon his wife, together with L. 150 to purchase furniture. On this contract she was infeft in certain subjects belonging to him, a few days after its date.
A ranking and sale of Walter Fergusson's heritable property was afterwards brought, in which Mrs Fergusson having produced this contract and infeftment as her interest, the other creditors
Objected: The provision to Mrs Fergusson cannot be considered as onerous, because her husband received and spent her fortune before the date of the contract, which he had come under no previous obligation to execute. It therefore falls under the act 1621, as a gratuitous deed, executed by him after insolvency; and there are no grounds for supporting it to the extent of an aliment, as Mrs Fergusson will have, after her husband's death L. 84:12:6 yearly, arising from property not falling under the jus mariti.
Answered: Settlements made by a husband on a wife, even after insolvency, are reducible only in so far as they are exorbitant; 11th January 1738, Robertson, No 75. p. 957.; 19th June, 1635, Walker, No 72: p. 953.; 19th January 1676, Brown, No 73. p. 954.; 17th February 1738, M'Kenzie, No 76. p. 958.; 26th July 1744, Campbell, No 103. p. 988. But the provision in question, considering Mrs Fergusson's station in life, and the fortune brought by her, is moderate and reasonable.
The Lord Ordinary took the cause to report.
The Court were unanimous in thinking, that the contract should neither be supported nor set aside in toto. Some of the Judges thought that Mrs Fergusson should be allowed 10 per cent. yearly of the fortune brought by her. The prevailing opinion, however, was, that, in cases of this sort, the extent of the widow's provision ought not to depend so much upon what her husband received by her, as upon the rank and situation of the parties.
The Lords, ‘in respect both parties are agreed that Mrs Fergusson has the property of a house in Tiviot Row, and the fee of two sums of L. 700 and L. 282: 9s. Sterling, due by bonds bearing interest, restrict her provisions, granted by Mr Fergusson out of his estate, to an annuity of L. 80 Sterling, in the event of her surviving her husband; and in so far repel the objections made to said provisions, and to the heritable security granted for the same, in virtue of the postnuptial contract.’
Lord Ordinary, Monboddo.For the Creditors, Maconochie, Rae.Alt. Honyman, Cathcart, Arch. Campbell, junior.Clerk, Colquhoun.
Fac. Col. No. 198. p. 476.
