Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION I.

What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. IX.

Effect of Jus Mariti.

Messrs Annand and Colhoun
v.
Helen Chessels

Date: 4 March 1774
Case No. No 58.

In a settlement by a father of his estate on his daughter, in trust for herself and children, her husband's power of admin stration, in the event of his future insolvency, may be excluded.

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Helen Chessels was the daughter of Archibald Chessels, and the wife of James Scott.

About a year before his death, Mr Chessels executed a settlement of his whole estate, real and personal, in favours of his daughter, in trust, for behoof of herself, in liferent, and of her children in fee, with this proviso, “That, in case of the event of James Scott her husband's insolvency, he secluded and debarred the said James Scott's jus mariti, and him from the administration and management of the said estate, heritable and moveable, and of the rents, annualrents, and other produce and profits of the same; and declared the same should neither be liable nor subjected to the payment of his debts, implement of his deeds, nor affectable by the diligence of his creditors.”

Scott became bankrupt, and, notwithstanding the proviso in Mr Chessels's deed of settlement, Annand and Colhoun, as creditors of Scott, having proceeded to attach certain subjects, which would otherwise have fallen under his jus mariti, a process of multiplepoinding ensued.

Pleaded for Helen Chessels and her Children; An unlimited fiar or proprietor is entitled to the full exercise of his property, and, consequently, may alienate it, either absolutely, or under any lawful condition, such as that of excluding the jus mariti of the disponee's husband; Lord Bankton, B. 1. Tit. 5. § 84.; Erskine's Lesser Instit. Book 1. tit. 6. § 7.; Larger Instit. B. 1. Tit. 6. § 14. Hence Mr Chessels might, either by the nature of his settlement, or by a special clause to that effect, exclude the jus mariti of Mr Scott; and, in fact, he did both; conveying his whole estate to Mrs Scott in trust, which imported a virtual exclusion, and farther qualifying the conveyance by the above express condition, by which Mr Scott's right of administration, the only thing given to him, was barred, in the event of his insolvency. The distinction between the complete jus mariti, and the simple power of administration, was early known in the law of Scotland. A difference, indeed, formerly arose from this, that, though a husband could renounce his jus mariti, so far as it respected his interest in the wife's moveables, yet could not divest himself of his curatorial power, or right of administration. The contrary, however, is now established; and, with respect to a third party giving an estate to a wife, it never was at any time doubted whether he might exclude the husband's power of administration; and such is the predicament in which Mr Chessels stood.

Answered for the Creditors of Scott; The jus mariti is, in the eye of law, as much an estate in a husband as any other property whatever. In this case, Mr Scott appeared vested with that right from the moment his wife succeeded to her father, and, on that footing bona fide, his creditors transacted with him. With respect to them, therefore, the exclusion contained in the latent deed in question ought to be held pro non scripto. But, even though there had been no deception in the matter, the jus mariti having once taken effect, and a jus quæsitum thereby been created to the husband's creditors, they cannot justly be now deprived of it, on account of a circumstance altogether unknown to them. That would be to give to that eventual exclusion a retrospect to their prejudice, which ought not to be allowed. Every man's estate is liable for his debts. Hence entails, when first introduced, were considered as pacta contra leges; and it is only upon the ground of the subsequent invention of irritant and resolutive clauses, that they are now supported. But still the interests of third parties are guarded by the forms of publication which the Legislature has ordained. Nor is there any solidity in the observation respecting a distinction between the jus mariti and the power of administration. The jus mariti includes both the rights of administration and disposal; the latter of which, indeed, is inseparable from the former; Lord Stair, B. 1. tit. 4. § 9.

Replied; The argument from entails, brought into this question, is totally misapplied. There each heir is fiar or proprietor of the estate; whereas, in regard to a wife succeeding to a stranger, the estate belongs not to the husband, whose right, as such, is merely personal, but to the wife alone.

“The Lords found that Archibald Chessels's heritable subjects, and also his moveables, and executry funds, were vested in Helen Chessels, his daughter, in trust, for the purposes mentioned in his deed of settlement, and were not affectable by James Scott, or his creditors; and that, when James Scott became bankrupt, his right of administration of the said subjects ceased, and that the rents, and annualrents, that fell due thereafter, belonged to Helen Chessels and her children, in terms of Archibald Chessels's settlement, and were not affectable by James Scott's creditors.”

Act. Lord Advocate, Sol. General, & Iay Campbell. Alt. Rae, A. Murray. Clerk, Gibson. Fol. Dic. v. 3. p. 280. Fac. Col. No 110. p. 292. *** This cause was appealed:

The House of Lords, 23d March 1775, “Ordered and Adjudged, That the appeal be dismissed, and the interlocutors therein complained of, be affirmed.”