Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IV.

The Husband's powers with regard to the management of the common stock, and of the Children.

Thomas and Andrew Sorlies
v.
Elisabeth Robertson, Relict of Patrick Sorlie

Date: 5 December 1771
Case No. No 147.

The power of a husband over the goods in communion does not authorise him to execute a deed, with the evident design of disappointing the relict's legal claims.

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In the year 1720, Patrick Sorlie, the pursuer's uncle, lent to the Duke of Athol the sum of 2000 merks; the security taken was a contract of wadset, by which the sum was taken payable to himself, in liferent; to Patrick Sorlie, the pursuer's eldest brother, in fee; and, in the event of his dying without issue, to the pursuers.

Patrick Sorlie, being in the fee of the loan, called up the money; and in the year 1753 granted a bond, proceeding upon the recital of the destination in the contract of 1720; whereby he bound “himself and his heirs, in the event of his having no children, to pay to the pursuers, his brothers, equally betwixt them, their heirs, &c. the sum of 2000 merks, and that against the day after his death.” He provided, that his just debts should be preferred to this bond, but that no legacy, or claim, or pretension of Elisabeth Robertson his spouse, or any of his relations whatever, should have any preference thereto.”

Patrick Sorlie died in 1768, leaving his effects chiefly vested in bills; when a process took place betwixt the brothers and the widow of the deceased; in which the chief question was, Whether or not the above 2000 merks should come off the whole executry before the widow could claim any interest therein jure relictæ ?

The Sheriff found, “That the relict had right to the just and equal half of the free effects and debts which belonged to the defunct; and that the bond and assignation for 2000 merks, in favour of the executors, did not affect the relict's share.”

The cause having been brought into Court by advocation,

The pursuers pleaded; The goods naturally in communion betwixt husband and wife were affectable not only by the onerous, but by the rational deeds of the husband. They might also be affected by deeds merely of a gratuitous nature, where it did not appear that an attempt to defraud the relict had been in view. The deed, in the present instance, was rational, executed with a design to preserve the destination in the former settlement of this fund; and as in this the relict had originally no interest, she neither was defrauded, nor was it in contemplation to defraud her of her just claims.

Nothing in this case had been done that the defender had any right to complain of. If this money had either remained upon the former security, or been lent out upon a new one with the same destination, or even upon a common bond bearing interest, the relict could have claimed no interest in it; and as all these measures, by which her interest would have been excluded, were in the husband's power, it was the same thing, nor could she complain of any injury, when the same effects merely, were the result of the method that had been followed.

The bond was not a deed of a testamentary nature, but a deed inter vivos, being granted fifteen years before the granter's death; during which period, had he entertained any idea that, contrary to his declared intention, his relict would have claimed any interest in this sum, he would have put it out of her power, by taking a security for it upon a different footing.

The defender pleaded; 1mo, As the bond was evidently a donatio mortis causa, there could be no doubt that it affected only the dead's part, and in no manner lessened the relict's share. That it was a deed of a testamentary nature was clear from the circumstances. It was gratuitous, not payable till after the death of the granter, was preferred to all other legacies, and postponed to all the granter's onerous deeds. It had been decided by the Court with regard to the legitim, that a father, by a deed to take effect after his death, could not disappoint his children of that right; the legitim and jus relictæ were, in this respect, precisely similar; so that the reason and foundation of the judgment was equally applicable to both. Feb. 1728, Henderson, voce Legitim.

2do, Although this bond was considered as a deed inter vivos, yet it was of such a nature as to exceed the power the husband had over the goods in communion. All reasonable acts of administration were valid, but the law did not allow him to make an improper use of the confidence reposed in him; so that whenever he abused that confidence, and under colour of his right of administration executed, deeds with intention to defraud his wife of her legal interest, such deeds would be declared null and void.

Every deed fell under this rule, where it could be proved it was done with a design to deprive the widow of her share. The circumstances, in the present case, were strong, and sufficiently indicated the design in view. Independent of those already mentioned, the deed itself contained a clause, expressly declaring that it should take place of any claim the defender might have; and as the pursuers were the granter's natural heirs, the deed had evidently been made for no other purpose than to defeat the defender's legal right. Dirleton's Doubts, voce Jus RelictÆ. Thomson contra Creditors of Thin, No 141. p. 5939.; 10th January 1679, Grant contra Grant, No 142. p. 5943.; Fac. Col 26th June 1760, Campbells contra Campbell, No 145. p. 5944.

The Judges rested their opinion upon its appearing to be the intention of this bond to disappoint the wife; and therefore “found, that the sum due in the bond cannot affect or impair the relict's share of her husband's moveables.”

Upon advising a reclaiming petition and answers, the Court unanimously adhered; there being a strong appearance, as well from the circumstances as from the terms of the deed, of a design to defraud the wife.

For Sorlies, D. Graeme. For Robertson, D. Smith. Lord Ordinary, Pitfour. Clerk, Gibson. Fac. Col. No 114. p. 338.