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Scottish Court of Session Decisions >>
Glasford v Dawling. [1634] Mor 6106 (22 March 1634)
URL: http://www.bailii.org/scot/cases/ScotCS/1634/Mor1506106-317.html Cite as:
[1634] Mor 6106
Whether deeds betwixt Husband and Wife, where there are clauses favour of third parties are revocable, although gratuitous.
Glasford v. Dawling
Date: 22 March 1634 Case No. No 317.
A bond taken by a man to himself and his wife in liferent, and to her heirs in fee, found revocable quoad the wife's heirs, as well as herself.
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One Glasford, Clerk of Leith, married upon one Dawling, gives out 1000 merks upon an heritable obligation, “To himself and to his wife, and to the longest liver of them two in liferent, and to the heirs of the wife after her decease.” The wife being deceased, and the debtor suspending upon double poinding, against the husband on the one part, and Robert Dawling, brother's son and heir to the wife on the other part; and they being both heard anent their right to the said sum; the Lords found, That the husband had the only right to the said sum, and that the same pertained to him heritably, and not to the heir of the wife; because the Lords respected the bond of the tenor foresaid, as donatio facta a viro uxori, and so that it was revocable, likeas he had revoked the same; and therefore, the destination of payment appointed to the wife's heirs by the bond, could not take effect against the husband's will, revoking the same; neither was it respected what the heir of the wife alleged, that the revocation was made after the wife's decease, and so was not done debito tempore post jus acquisitum hæredi, who could not be prejudged of that benefit of the obligation, by that revocation done after the wife's decease, and after the heir became clothed with the right, whereof he could not be prejudged but by a deed done by himself; for the wife and the husband once agreeing upon the choice of an heir, to whom they had provided by consent the fee of that money; neither could they, far less one of them alone without the other, alter that choice which they had made, and much less could the alteration be made against the will of the heir, after the decease of the wife, who died in that will; which allegeance was repelled.
Act. ——.Alt. Nielson.Clerk, Scot.
Fol. Dic. v. 1. p. 410. Durie, p. 717.
