Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION IV.

Private Deed, how far probative.
Subject_3 SECT. II.

In what cases a Private Deed not probative against the Heir.

Marion Dods
v.
Laurence Scot

Date: 16 February 1671
Case No. No 473.

Payment of a tocher by a wife, presumed by the parties living together 22 years, and the husband in his testament acknowledging that it was paid.

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By contract of marriage betwixt James Scot and Marion Dods, Marion is obliged to pay in tocher L. 1000 to the said James at the next Candlemas, and the said James is obliged to employ the same to him and her in conjunct fee, and to the heirs of the marriage, which failing, to her heirs; and James having died without children, the said Marion pursues Laurence Scot as his heir, to employ the sum conform to the said obligement; who alleged, Absolvitor, because the pursuer has yet the tocher in her own hand, unless she can shew a discharge. It was answered, 1mo, That the parties having lived together 22 years, it must be presumed that the husband was paid, and had the custody of the discharge; 2do, The husband by his testament acknowledges that the sum was paid. It was answered, That this written obligation cannot be taken away by such a presumption, and the assertion of the defunct in the testament has been procured by the wife's importunity in her husband's weakness, and however cannot prejudge the heir, and can import no more than as legatum liberationis, which can only affect the dead's part of the free gear.

The Lords found the presumption, with the acknowledgment in the testament, a sufficient payment of the tocher, against all parties having interest.

Fol. Dic. v. 2. p. 255. Stair, v. 1. p. 722. *** Gosford reports this case:

1671. February 15.—In a reduction of a decreet obtained at the said Marion's instance against Laurence Scot, as heir to his father James Scot, husband to the said Marion, for payment of L. 1000 provided to her by contract, failing of heirs of the marriage, upon this reason, that by the contract of marriage, the said Marion was obliged to pay in the first place the sum of L. 1000 in name of tocher, in contemplation whereof her husband was obliged to employ the said sum to him and his wife in liferent, and to the heirs of the marriage in fee, which failing, to return to the said Marion; but so it is, that the said tocher was never paid, therefore the said James's heirs nor executors cannot be liable, seeing a provision that the tocher should return, pre-supposes necessarily, that it should be first paid. It was answered for the defenders, That the reason was noways relevant, and that they were not now obliged to prove payment of the tocher, which the law necessarily presumes to have been paid, albeit no discharge can be produced, because Marion herself being a young woman, and the only party contractor, and the said James a most intelligent man, and accepting of an obligement for her tocher, either to pay that sum, or to assign the bond for the like sum, they having lived together by the space of 22 years, it is not imaginable but that he hath uplifted as much of her means as would amount to that sum; neither could it be expected, that he being her husband, she could be so exact and knowing as to crave a discharge of her tocher; 2do, To evince that he was truly satisfied, they did produce the said James's testament, bearing his acknowledgment, that he was satisfied of all he could seek of his wife, which they alleged was equivalent to a discharge. It was replied for pursuer, That presumptions by the law do not take away that obligement for the tocher, which being founded upon writ, behoved to be taken away scripto; and as to the testament, that acknowledgment of satisfaction being made on death-bed, and importing no more but a legacy, it could not prejudge the heir, by diminishing of the moveables, whereby he would be relieved of moveable debts. The Lords did assoilzie from the reason of reduction, and found, that the husband and wife having lived so many years, and he having right jure mariti to all that was her's, albeit she had gotten no formal discharge of a tocher, it could not prejudge her of the provisions of her contract of marriage, specially he having declared upon death-bed, that he was truly satisfied; and therefore, found the letters orderly proceeded upon the decreet.

Gosford, MS. No 336. p. 157.