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.

Trustees of Murray
v.
Dalrymple

Date: 5 February 1745
Case No. No 57.

The husband can renounce his right of administration.

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A wife, to prevent a jointure from a former husband, from being affected by the creditors of a second husband, vested it in trustees for the behoof of herself and family. The person upon whose estate the jointure was secured, alleged, That he was not in safety to pay to the trustees, because the wife could neither defeat her husband's jus mariti, nor could he renounce it; the renunciation itself being a moveable fight, and falling under it; and likewise because she was prohibited by her first contract of marriage to alienate or burden the jointure. —Answered for the wife, That that notion of the old law with regard to the jus mariti has been long exploded; and that she has made no alienation, as the disposition is for her own behoof. —— The Lords sustained the wife's defences.

Fol. Dic. v. 3. p. 279. *** Kilkerran reports the same case:

It was the opinion of our old lawyers, that the husband's renunciation of his jus mariti, even before marriage, could not be effectual, unless the wife had before marriage conveyed the subjects falling under it in favour of a third party. Their notion was, that the right acquired to the wife by the renunciation fell back, and accresced to the husband by the marriage, like water thrown upon high ground, as Stair expresseth it; though now for some time it has been considered as a settled point, that the wife's reservation is effectual, though not exercised by her in favour of any third party. But it is still a different question, how far the husband can renounce his right of administration? that is, what seems to have been thought to be contra bonas mores. Vide 9th February 1667, Lord Collington contra the Lady, No 50. p. 5828. Yet though even that was the expressed intention in this case, as it was executed by a trust-right, it was found effectual.

The case was, Isabella Sommervill, relict of Mr Hugh Murray-Kynnynmound, having agreed to marry Charles Murray, brother to Sir Alexander Murray of Stanhope, after he had been declared bankrupt, and obtained a cessio bonorum; in order to secure her estate from his creditors, and to enable her to apply the same for the subsistence of her, arid her future husband's family, she, by her contract of marriage, conveyed her estate to George Lockhart of Carnwath, and others as trustees; for the ends and purposes-therein mentioned, viz. “For her sole use and benefit, exclusive of the jus mariti of her said future husband, and of all right of administration or other right whatsoever that might be competent to him by and through the intended marriage, and exclusive of his debts contracted or to be contracted, wherewith the subjects thereby disponed are declared to be noways affectable, but the same to be applied for her sole use, and for the aliment and subsistence of her and her family, notwithstanding the coverture; with a power to the said trustees to appoint such factors as she should name, who should be obliged to account to her, and to pay over to her what they should receive, upon receipts to be granted by her alone, without the consent of her husband.”

And Sir James Dalrymple, who was debtor in a certain annuity to the said Mrs Isabella, having for his own safety presented a bill of suspension of a charge at the instance of the factor appointed by the trustees to the end foresaid, chiefly upon these reasons, That a husband could not effectually renounce his jus mariti, at least his right of administration; the Lords, upon answers, ‘remitted to the Ordinary to refuse the bill.’

Fol. Dic. v. 3. p. 281. Kilkerran, (Husband and Wife.) NO 8. p. 260.

*** See D. Falconer's report of this case, No 28. p. 2273.