Lady Pulteney v. Miss Christian Ann Stuart and her Guardians
Date: 18 December 1807 Case No. No. 6.
Moveables falling to a wife during her husband's lifetime by the death of her father, but not being vested in her by confirmation till after her husband's death, yet are affected by the jus mariti, and shall be shared by the representatives of her husband.
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In July 1799, while the pursuer, Margaret Stirling, afterward Lady Pulteney, was the wife of Mr. Steuart of Torrence, her father, Sir William Stirling of Ardoch, died, and left moveable property of considerable value. Certain questions having occurred among his daughters and co-executors, Mrs. Steuart, and her three sisters, in regard to it, a submission was entered into; and, in the mean time, no confirmation or possession of the property by them took place. While things were in this situation, Mr. Steuart died in May 1801; and, in July of the same year, a decree-arbitral was pronounced, on which his widow took possession of her share of her father's moveable subjects. A doubt having arisen whether one half of this property did not fall to her daughter, Miss Christian Ann Steuart, as representative of her father; a multiplepoinding was raised by Thomas Graham, debtor in a personal bond, which formed part of the subjects in question, and a declarator was brought by Mrs. Steuart, then Lady Pulteney, against her daughter, to have it found that she had right to the whole succession derived from her father, Sir William Stirling. The Lord Ordinary conjoined these two processes, and reported the cause on informations.
Argument for the pursuer of the declarator.
The moveable property in question was never vested in the pursuer during the subsistence of the marriage. It fell to her in the way of succession, and could not be vested without confirmation. If the pursuer had died without confirmation, the property would have remained in bonis of her father, and could only have been taken up by her sisters as his next of kin. Her husband could have had no right to it if he had survived her, nor can his representatives, now that he has predeceased, have any right, because, without being vested in her, it could not fall under the jus mariti.
Argument for the defender.
The jus mariti is, in the words of Lord Stair, “a legal assignation to the wife's moveable rights, needing no other intimation but the marriage.” It is therefore equivalent to a voluntary assignation, and it is an onerous assignation, ad sustinenda onera matrimonii. It should therefore receive the most liberal interpretation, and be held to include every moveable right which it is in the power of the wife to bestow.
Having made this assignation, the wife is under an obligation to give it full effect, by adhibiting every form which is necessary and in her power. If she should refuse, the husband may himself take the necessary steps for this purpose, the marriage being equivalent to a mandate to that effect; but though this be omitted on his part, the obligation on the wife is not extinguished, nor can she take advantage of her own failure in implementing it. She is still bound, as in the present case, to do it after the death of her husband in favour of his representative.
If, instead of this tacit assignation, an express postnuptial contract had been entered into, by which the petitioner assigned the property in question to her husband, she could not have refused, after his death, to allow his representative the use of her name in completing titles to the subject. Yet this would only have been a written expression of the tacit legal contract, which is equally binding without writing, and must have the same effect.
The pursuer, therefore, having now made her right complete, she is bound to make it over to the defender. But this is unnecessary, for the principle here applies jus superveniens auctori accressit successori. By this principle, conveyances, originally ineffectual from want of right in the granter, become valid when the granter's right is afterward completed, and are held to be in all respects as if valid from the beginning, 22d Dec. 1738, Neilson against Murray, No. 23. p. 7773. &c.—and 10th Dec. 1742, Paterson against Kellie, No. 24. p. 7775. which shew the application of this rule to heritable rights, and Lord Stair, B. 1. Tit. 4. § 9. expressly applies it to assignations. As then, in this case, the pursuer has now completed her right, it must operate retro, and give legal effect to the assignation to her husband.
A right falling to a wife by succession, but not confirmed, is very similar to a right assigned to her, of which the assignation has not been intimated; yet, in the latter case, if the husband die before intimation, it has been found that the right fell under the jus mariti, 29th January 1663, Scot against Dickson, No. 37. p. 5799.
Replied for the pursuer.
The principle, jus superveniens, &c. does not apply, because it is founded on the obligation of absolute warrandice. Accordingly, when the conveyor is not liable in warrandice, as when the transmission is not voluntary but judicial, this principle does not apply. A legal conveyance, not by voluntary act of the party but by the act of the law, transmits the right tantum et tale, and any right afterward acquired cannot accresce. Such was the conveyance in the present case. This legal assignation of marriage contained no absolute warrandice, but carried the right tantum et tale. There was no obligation on the wife to complete her right, nor had she it in her power to complete it so as to bring it under the jus mariti.
The case of non-intimation of an assignation is very different from that of non-confirmation of succession. Without confirmation there is no right vested; but intimation is not necessary to vest a right, though it is necessary to put the debtor in male fide to pay to the assignee.
A case more analogous to the present, is that of a conditional debt due to the wife, the condition of which does not exist till after the marriage is dissolved. This subsequent purification of the condition, it might be said, would operate retro, but the contrary has been found, 18th Nov. 1694, Fotheringham of Pourie against Earl Home, No. 3. p. 5764, and laid down by Lord Bankton, B. l. Tit. 5. p. 87.
There was some division of opinion in the sentiments expressed by the Bench, the minority adopting the arguments of the pursuer, the majority those of the defender. The interlocutor of Court was, “The Lords, in the declarator, sustain the defences, assoilzie the defender, and decern; and, in the multiplepoinding, find Christian Ann Steuart, eldest daughter of the late Andrew Steuart, Esq. as his executrix, entitled to her mother's share of the moveable estate of her grandfather, Sir William Stirling, the same having belonged to her father jure mariti; and that she is entitled to complete her right thereto by confirmation, or otherwise, in her mother's name, if necessary; and remit to the Lord Ordinary to proceed accordingly.”
Lod Ordinary, Glenlee.Act. David Monypenny.Alt. David Douglas.Will. Wilson and James Dundas, W. S. Agents.Clerk, Scott.
Fac. Coll. No. 21. p. 61.
