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Scottish Court of Session Decisions >>
Jack v Pollock and Rutherfoord. [1665] Mor 3213 (23 February 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor0803213-036.html Cite as:
[1665] Mor 3213
Husbands in lecto are not hindered to give liferents, to their wives otherwise unprovided.
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Marion Rutherfoord married David Clerk, and had no contract of marriage with him, but he having acquired a little ruinous tenement, took it to her and him in conjunct-fee, and in the time of the plague, he provided her to the annualrent of 5000 merles. His heirs raise reduction of the provision, as being in lecto ægrutidinis, after he had keeped his house upon suspicion of the plague, of which he died. It was alleged for the said Marion, That keeping the house upon suspicion of the plague could not be as in lecto ægrutidinis, unless it were proven, that he was infected with the disease, before the provision was granted. 2dly, Even in that case, defuncts are not hindered to give liferents to their wives, for which there is a natural obligation, according to Craig's opinion.
The Lords repelled the first allegeance, but found the second relevant, in so far as might extend to a competent provision to the wife, and therefore, having examined many witnesses, hinc inde, upon the estate of the husband, and the tocher and frugality of the wife, and finding his means did consist in a tenement worth 500 merks by year, beside that inconsiderable tenement, wherein she was infeft, they restricted her annualrent, which came to 300 merk, to L. 123, which was about the terce of the tenement, albeit terces of houses within burgh are not due.
In this process, the wife and her second husband, and having repaired the other little tenement, which was ruinous, and built it much better than ever it was; for which they pursued for the reparations.
The Lords found, that they ought to have the reparation decerned, not only in so far as is necessary, but in quantum, the heir will lucrari, by getting greater mail to be paid at the wife's death, she leaving the tenement in as good case as now it is.
