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Robertson v Handyside. [1738] Mor 957 (11 January 1738)
URL: http://www.bailii.org/scot/cases/ScotCS/1738/Mor0300957-075.html Cite as:
[1738] Mor 957
Reduction of Alienations made by Bankrupts where the Reducer has done no Diligence.
Subject_3 SECT. X.
The Onerosity of Provisions in Favour of a Wife.
Robertson v. Handyside
Date: 11 January 1738 Case No. No 75.
A husband granted an annuity as jointure to his wife, not previously provided for, which exceeded a third of the value of his estate. Having become insolvent, his creditors claimed preference. The annuity sustained as a rational and onerous deed.
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A husband, during the marriage, having infeft his wife m an annuity L. 72 Scots a-year, upon a narrative that she was not otherwise provided: In a reduction after the husband's decease, at the instance of his prior creditors, upon the first branch of the act 1621, it was pleaded for them, that though a husband is naturally bound to provide his wife in a jointure, this obligation ceases by his insolvency, equally with the obligation to aliment her during the marriage. 2do, At any rate a liferent provision, granted in the circumstances of insolvency ought never to exceed a rationalis tertia, which the present does.—To the first answered, Though the obligation on the husband to provide his wife in a jointure, cannot be made the foundation of a process at common law, it is yet a debitum naturale, which he is bound to fulfil, and there is no law to bar him from applying his effects to this purpose, as well as towards the fulfilling of his engagements to any other of his creditors, seeing the doing justice to one creditor, in preference to another, is in the power oven of a bankrupt, who is not interpelled by diligence; and the law in this case makes no distinction betwixt creditors, whether more or less onerous; and therefore the liferent infeftment must stand as not being a gratuitous deed; unless the creditors could say further, that it was done with a view to prefer the wife to the other creditors; so as to found a reduction upon the head of fraud, of which there is no presumption in the present case.—To the second answered, If the liferent were immoderate, it would be reducible quoad excessum, and restricted to a rationalis tertia; but where the estate is so small, that the terce is not sufficient for a moderate aliment, there is no reason for making it a rule.—The Lords found the provision in question granted to the wife, after marriage, there having been no precedent contract, a rational and onerous deed, and therefore does not fall under the act 1621.
