Scottish Court of Session Decisions

Subject_1 BANKRUPT.
Subject_2 DIVISION I.

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.

Mrs Anne Nielson, &c
v.
Austins

Date: 21 November 1766
Case No. NO 107.

A person who concealed his marriage, become, after marriage, bound for an alimentary provision to his wife. After his death, the aliment restricted from L. 30 to L.10 in competition with creditors, but the relict found preferable to the nearest in kin for the balance.

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Mr William Sloan, probationer, having made a clandestine marriage with Anne Neilson in 1752; and, being desirous of concealing it, lest it should mar his prospect of church-preferment, gave her brother an obligation to pay what sums he should lay out for her, ‘as to clothes, or tabling, or otherwise;’ and acknowledged the marriage by a separate missive.

In 1754, having been fettled minister at Dunscore, he again acknowledged the marriage, in another letter; but begged that it might be kept private for some time longer, in the idea that, after-five years, the censures of the church would be prescribed. In this letter, he renewed his promises of maintaining his wife, as he had hitherto done, and proposed that she should continue, to live with her mother.

About the same time, Mr Sloan granted a bond for an annuity of L. 5 to his wife, till the 1st March 1757, and of L. 30, from that period, till he should publicily acknowledge her; and for a smaller annuity in the event of his death.

Mr Sloan lived eleven years after the date of the bond; but still the parties did not cohabit, and the marriage continued seroret as before.

Mr Sloan having died in 1765, and the marriage having been proved before the Commissaries, an action was brought by Anne Nielson, and her relations, who had alimented her, concluding, 1mo. For L. 215, said to have been expended on her anment from 1752 to 1757 2do, For L. 30 yearly, from that period, till Mr Sloan's death, and for the stipulated annuity in time coming. 3tio, For L. 20 for mournings.

The free effects not being equal to these claims, a competition ensued with the creditors.

The pursures contended, That the provisions must be considered in the same light, as if they had been contained in a contract of marriage, in which case they would have been effectual against creditors: That the aliment being a civil, as well as a natural debt upon the husband, the claim of those who furnished it must be effectual, in terms of Mr Sloan's missive: That the charge for mournings was moderate.

Answered for the creditors:—The present case, is different from that of a marriage contract. The marriage having been concealed till the last, creditors advanced their money to Mr Sloan in the belief that he was a single man; so that Mrs Nielson is barred personali exceptione from excluding them, in consequence of provisions kept latent by her own fault.

All claims-preceding the date of the bond must be presumed to have been discharged. At any rate, the obligation upon a husband to aliment his wife, is only prestable out of his free funds; and, therefore, cannot compete with creditors. The annuity of L. 30 was exorbitant. The claim of mournings is not good against creditors.

‘The Lords assoilzied from all the claims preceding 1st March 1757: Found, that the pursuer cannot compete with her husband's onerous creditors upon the alimentary bond for L.30 yearly, from 1st March 1757 to the time of her husband's death; and, therefore restricted the same to L.10 Sterling yearly during that period Found thar she is preferable to her husband's nearest of kin for the remaining L. 20 Sterling: Found that the pursuer is not entitled to mournings.’

Act. Crosbis, Alexander Murray. Alt. Macqueen. Fac Col. No 45. p. 272.