Book I. The right of the survivor in all interest accruing to the wife from the marriage in the husband's estate, heritable or personal, whether by the disposition of law or by covenant, returns to the husband, or his heirs. This rule extends to all settlements in marriage-contracts 7 in favour of any of the two spouses which are expressly made intuitu matrimonii, July 16. 1678, Lo. Burleigh, (DICT. p. 6172.); and to every provision where the wife or issue of the marriage are secured in any part of the subject provided, though it should not be expressly mentioned to be made in contemplation of the marriage; because such provision cannot possibly be granted in any other view: But stipulations in a marriage-contract, which are formed merely between the contractors on the one side, without securing any benefit to the other, are not, without an express clause, accounted to be made intuitu matrimonii; and therefore stand good, notwithstanding the dissolution within the year. This is the case of a provision of land or money made by the husband's father, not to the wife, or to the issue of the marriage, but without restriction to his own son ; which, because it does not form a contract between the married parties, but barely between one of the parties and his father, without any stipulation in favour of the wife, or the issue of the marriage, continues in full force, let the marriage be of ever so short a duration, Home, 132. Kilk. HUSBAND AND WIFE, N° v. (Hood, DicT. p. 6175.)*168 39. In consequence of this rule, the right which the husband acquires by marriage in the wife's moveable estate, though it arises goods which fell ipso jure, determines by the dissolution within year and day; which is considered as a resolutive condition, on the existence whereof that right evanishes retro, as if it had never been acquired. And under the com munion ceases; since * See to the same effect, Fac. Coll. July 24. 1766, Hunters, DICT. p. 6164.; Feb. 7. 1781, Cuming, DicT. p. 6165. By a solemn decision, Fac. Coll. Dec. 15. 1786, Lowther, DICT. p. 435., it was found, that where marriage had been dissolved by the death of the husband within year and day, without issue, the wife was entitled to an aliment out of his estate. 167 And to postnuptial, as well as antenuptial contracts; Kames, Rem. Dec. Kilk. Somerville, 22 Feb. 1751, Dicr. p. 6161. 168 Opposite judgments had been pronounced in this case, and the final decision is called in question by Lord Kilkerran, who closes his report with the remark,— that "the authority of this decision will be the less, when it is remembered that it "proceeded upon the narrowest majority, and when four of the Lords were absent." It is difficult, indeed, altogether to reconcile the principle of the decision, with that which must have ruled the Court in the previous case of Lord Burleigh, likewise noticed in the text; though there, too, the judgment seems to have created differences of opinion, Lord Fountainhall observing that it "was wondered at by many." In this state of the authorities, it can scarcely, perhaps, be considered as yet settled, that it requires "an express clause," to prevent the falling of stipulations, even "be"tween the contractors on one side;"-if, on the whole, it be quite clear, that these stipulations were made only intuitu matrimonii, and were substantially intended as of a conditional character. As to the two cases referred to in the first part of note *, they seem to have little or no relation to the point; both of them, indeed, arising out of provisions made directly by the husband in favour of his wife, and of course involving no dispute as to the validity of stipulations "between the contractors on one side." Thus, in the case of Hunters, a disposition to "a betrothed wife," was found good, it appearing to be truly a testamentary donation. In that of Cuming, again, where the husband had purchased a house, and taken the title to himself and his wife in conjunct fee and liferent, for her liferent use allenarly, and to the children of the marriage in fee, the provision of liferent was found void, on this ground-that, in the particular circumstances of the case, it was not a pure donation, and consequently must have been granted in contemplation of the marriage." 66 since the wife hath in that event no interest in the goods falling under the communion, it is necessary for preserving a just equality in the society of marriage, that the husband's interest in them should also fall and resolve. He is even obliged to account for the wife's tocher, without deducting the sums by which it has been diminished for her maintenance during the marriage; though tochers are given for that very consideration, of defraying the expense of a married state; but he is allowed to retain out of it her funeral charges, because these are expended after the marriage is dissolved; and the sums he had applied towards the payment of the debts contracted by herself before the marriage, Feb. 23. 1681, Gordon, (DICT. p. 6180.). The husband is accounted a bona fide possessor, with respect to what he has consumed of his wife's moveables, on the faith of his right, while the marriage subsisted; for which therefore he is not accountable, Dirl. et Steuart, v. Jus mar. 169. Where things cannot be restored on both sides to their former state, it would be inconsistent with equity, and with the spirit of the law, to restore one party and not the other. Hence, an infeftment granted by the husband for the wife's jointure was found to subsist, though the marriage dissolved within the year, as a security for the repayment of her tocher, July 20. 1664, Petrie, (Dicт. voce MyTUAL CONTRACT, N° 2. p. 9136.). 40. Presents made on occasion of the marriage to the new-married pair, by the friends on either side, are understood to be absolute gifts, not fettered with any tacit condition of return; and therefore, though the marriage should be dissolved within the year, such presents are not restored to the donors, but are divided equally between the surviving spouse and the representatives of the deceased, Jan. 14. 1679, Wauch, (DICT. p. 6179.). But if, from the nature of the present, it shall appear that it could be intended for one of them only, it goes entirely to that party for whose use it is presumed to have been given, Nov. 14. 1710, Dewar, (DICT. p. 6180.). In like manner, the presents made by the husband himself to the wife at the marriage, whether of subjects properly paraphernal, or of common goods, ought not to be restored, at whatever time the dissolution may happen; but must either remain with her, in case she be the survivor; or, if the marriage shall dissolve by her death, go to her executor. If a living child has been procreated of the marriage, who was heard to cry, the marriage, though it had been dissolved within the year, is as effectual to all purposes as if it had subsisted 169 It has been remarked on this passage, in reference to what is laid down in the immediately preceding sentence, that "it is not easy to conceive a practical example "of this, if it be true that there is no deduction given for sums by which the tocher has "been diminished for the wife's maintenance during the marriage," 1. Bell's Comm. p. 548. But if we advert that Dirleton, in loc. cit. draws a distinction between the tocher,which he regards in the light of a provision," in respect of a marriage durable and stand"ing," and the moveables, incidentally, as it were, coming into the husband's possession after marriage, and by force of the jus mariti; (for instance the rents of his wife's separate estate, interest of bonds, &c.),-the difficulty seems to be removed. To the former, there is in some sort a condition attached, which prevents it from finally or completely vesting in the husband,-until that condition be purified, and the marriage have actually acquired a " durable and standing" character. Whereas the right to the latter is more immediate, being "founded upon the relation of maritus; et ipso momento that he was "married, he was husband." The distinction may or may not be well founded; but if it be, the application of the doctrine of bona fide consumption seems equally practical and correct. BOOK I. Effect of mar after the year. subsisted beyond it '70. The crying of the child is, in Lord Stair's opinion, the only legal evidence receivable by the judge of its being born alive, B. 1. T. 4. § 19.; B. 2. T. 6. § 19., that the matter may not be left to the uncertain conjectures of those who are present at the birth. And though the doctrine of the Roman law seems fully as consonant to equity, and to the analogy of ours in other cases, (as to which vid. infr. B. 3. T. 8. § 96.), which admits of other circumstances, provided they be equally pregnant, in proof of that fact, L. 3. C. De posth. hæred.; yet in this particular, the court of session has departed both from the reason and the authority of that law, and by a recent decision, Fac. Coll. July 17. 1765, Dobie, (DICT. p. 6183.) has considered a child, which by both parties was admitted not to have come to proper maturity, and was not heard to cry, as a foetus, or untimely fruit of miscarriage, rather than a child 171. 41. If the marriage hath been dissolved by death after year and riage dissolving day, the surviving husband becomes the irrevocable proprietor of the tocher; and the wife, in case she survive, is entitled to all the provisions secured to her in that event, whether legal or conventional. Where the interests of the married pair have not been fixed by marriage articles, special rights arise, by the disposition of the law itself, to the surviving spouse, whether husband or wife, and to the issue of the marriage. The interest of the surviving husband in the heritable estate of the wife is called the courtesy; and that of the surviving wife in the husband's heritage, her terce. A particular share of the goods in communion falls to the surviving wife, in virtue of her jus relictæ, and another to the children, either in the right of legitim, or as next of kin; all which shall be explained in their proper places*. As the widow has, upon the husband's death, Where the widow's legal provisions of terce and jus relicta are insufficient, the court will modify to her an additional aliment out of her husband's estate, Fac. Coll. March 6. 1778, Thomson, DICT. p. 434., Jan. 27. 1790, Young, Dicт. p. 400 172. had 170 In a recent case, where the parties had cohabited for many years, procreated children, and ultimately acknowledged themselves married persons, so as to legitimate these children, it was made a question, whether the widow was entitled to her legal provisions, the marriage having been dissolved within ten months of its having been declared, and without any child having been born subsequently. The court decided in favour of the widow, "upon the principle, that she was the mother of lawful children at the time of her husband's death;" Crawford's Trustees, 20th Jan. 1802, Fac. Coll. DICт. p. 12698. 171 In this case, it even "appeared, that the child breathed, raised one eyelid, and "expired with the usual convulsive agonies, about half an hour after its birth." But the rule of law was held peremptory,-that the child must be heard to cry. 172 It was in one case found, that a widow in the lower ranks of life is not entitled to this extraordinary aliment; M'Cowan, 20th May 1809, Fac. Coll. But the soundness of the decision has since been questioned, and a contrary judgment unanimously pronounced; Smith, 11th March 1812, Fac. Coll. In this last case, it should perhaps be observed, that some of the judges rested their opinion on what they considered a material difference of circumstances; the property left by the husband being in the former case rented so low as L. 12, while, in this, the rents were alleged to exceed L. 50. In the former case, too, "the woman before marriage had been in the rank of a servant, "earned her bread by her hands, and never was out of that line of life;" whence it was thought, that "after her husband's death, she must earn her bread in the same way "she had done before marriage." Where the widow's provisions have been settled in an antenuptial contract, the court will not interfere, to modify an additional or extraordinary aliment, notwithstanding any change in the rank or circumstances of the husband; Lady Findlater, 8th Feb. 1814, Fac. Coll. death, no present fund for the subsistence of herself and her family, she has a claim against her husband's representatives for alimony, from the day of his death, to the first term of payment of her provision, whether legal or conventional; the measure of which is to be ascertained, not by the extent of that provision, but by the husband's quality and fortune, and the number of servants left by him in his family when he died, July 15. 1713, Cred. of Scot, (DICT. p. 5916.): Home, 76. (Boswell, Dicт. p. 5916.) 173. She has also a legal claim to mournings for her husband, suitable to his quality, where his estate or rank requires mourning in point of decency, July 7. 1675, Wilkie, (DICT. p. 5923.) *. And in case of a posthumous child, she may recover from the husband's representatives the expense incurred by her on occasion of the birth or baptism of the child, Nov. 10. 1671, Hastie, (DICT. p. 5922.). But none of those articles, not even the last, can be claimed, if her husband, let his station be ever so high, hath not left a sufficient fund for the payment of all his onerous creditors † 174. Where the wife survives, the paraphernal goods continue her property, and cannot be attached by the husband's creditors. If the wife die first, they go to her children or her other next of kin. 42. If a marriage shall subsist for a year, and part only of the day next ensuing the year, all deeds granted in contemplation of the marriage subsist, Feb. 25. 1680, Waddel, (DICT. p. 3465.): Which arises not so much from the favour of marriage, the only reason assigned in that decision, as from the legal meaning of the expression year and day: For where any right is to be completed, or act to be performed, within a year, of which many instances are to be met with in our law, a day is generally adjected to the year, 1661, C. 62.; 1695, C. 24., &c. in majorem evidentiam, that it may appear with the greater certainty that the year itself is completed; and therefore the running of any part of the day next after the hath the same effect as if the whole day were elapsed. VOL. I. year Found, that the widow had a claim to mournings, even where the marriage had not subsisted for a year; Kilk. Husband and wiFE, NO. vi. Gordon, Dicт. p. 6161. + Nov. 21. 1776, Neilson, DICT. p. 6165 14. 175 This claim was held good, though the establishment of the husband had been broken up immediately after his death, and the wife herself had gone to live with her father; these circumstances merely affecting the quantum; Palmer, 27th June 1811, Fac. Coll. Where the parties had been living apart, under a regular deed of separation, the aliment was restricted to the sum provided by that deed; though the conventional provisions, which were to take effect afterwards, under the contract of marriage, were considerably greater; Turner, 19th May 1803, Fac. Coll. DICT. v. Aliment, App. No. 7. In this case, indeed, the very special terms in which the deed of separation was conceived, would seem to have precluded all operation of the general rules of law. The legal claim of the widow for aliment, as well as the analogous one for mournings, is held not to be cut off by a mere general clause in any deed securing conventional provisions, and declaring these to be" in full of all terce, courtesy, half, or third "of moveables, and of every other legal claim competent by and through the dissolu"tion of the marriage, any manner of way." It must in itself be expressly renounced'; being of such a nature that the Court cannot assume it to be discharged by implication; Palmer, supr. cit.; Rennie, 16th May 1800, Fac. Coll. DICT. v. Presumption, App. No. 4. 174 The contrary has been decided, with regard to the widow's mournings, which, (notwithstanding the case of Neilson referred to in note +), are now held to constitute a privileged debt, even in a competition with creditors; Sheddan, 15th May 1802, Fac. Coll., DICT. p. 11855; 1. Bell's Comm. p. 548. TITLE VI. Effects of the dissolution of marriage within the year, are commonly barred by a clause in the contract. BOOK I. Marriage may be dissolved by divorce, 1st, On account of adul tery. 1269 The disputes which might spring from the dissolution of a marriage within the year, are now, for the most part, prevented by a clause in the marriage-contract, stipulating, that the interests of the two spouses shall continue in full force, though the marriage should be dissolved before the year, without a living child.- Hitherto of the dissolution of marriage by death. And 43. A marriage which is null from the beginning, and may be declared so by a sentence of a proper court, (instances of which have been mentioned, § 2. 7.), cannot be said to be dissolved, because it was never truly contracted; and as marriages, in themselves void, can have no legal effects, every thing must, on a declarator of their nullity, return hinc inde to its former condition*. Marriage, when it is lawfully constituted, may be dissolved, not only by death, but by divorce; which may be sued for, either on the head of adultery or wilful desertion. Divorce is such a separation of married persons, while they are both alive, as loosens them from the nuptial tie, and leaves them at freedom to intermarry with others. Marriage being by the canonists numbered among the sacraments, is accounted a bond so sacred, that no crime committed, or provocation given, by either of the parties, can dissolve it. Hence, though in the case of adultery, the Canon law admits of a separatio tori, a separation as to bed and board, the nuptial tie remains still undissolved, the parties continue married, Lancel. Inst. jur. Can. L. 2. T. 16. § 9., and their intermarrying with third parties infers bigamy. even by the usage of Scotland, neither adultery nor wilful desertion are grounds which necessarily dissolve marriage; they are merely occasions or handles, which may be laid hold of towards obtaining a divorce: But if the injured party choose to live on in a married state, the marriage continues in full force. The position laid down in general terms by Mackenzie, h. t. § ult., that after divorce the party guilty cannot marry, is inconsistent with the notion of divorce, which extinguishes all the ties and obligations consequent on marriage. The adulterer, therefore, being as effectually loosed by the divorce as the party injured, may lawfully enter into a second marriage. This liberty is indeed abridged by positive statute, 1600, C. 20., which, in the case of divorce on the head of adultery, disables the party divorced from marrying him or her with whom the adultery is said, by the sentence of divorce, to have been committed; a doctrine borrowed from the Roman law, L. 13. De his ut ind. But the guilty person is at full liberty to intermarry with any other. The Canon law does not carry the restraint so far: It permits the adulterer, after the marriage is dissolved by the wife's death, to intermarry with the very woman with whom he was guilty, except in the special case where the adulterers had contrived and been accessory to the death of the wife, Decretal. L. 4. T. 7. C. 6. : quae 44. Divorce may also proceed on wilful desertion, i. e. where either of the spouses, deliberately and without just cause, deserts or separates from the other, and thereby defeats the chief purposes for which marriage was instituted. This ground of divorce is not only approved of by St Paul, 1 Cor. vii. 15., but established by statute, 1573, C. 55., which enacts, That where any of the spouses shall divert from the other without sufficient grounds, and shall remain Haddington, July 14. 1610, Earl of Eglinton, DICT. p. 6185. |