Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Barbara M'Kay
v.
Alexander Lawrie

Date: 26 February 1765

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Barbara M'Kay, by a postnuptial contract, dispones her heritage to her husband and the heirs of the marriage, whom failing, to the husband's heirs and assignees whatsoever, reserving her own liferent; but with this proviso, “that thir presents are granted under the burthen of all the just and lawful debts due, or that shall happen to be due, by the said spouses at the time of the dissolution of the marriage; but, in case there shall be no child or children of the marriage existing at the dissolution thereof, by the death of the husband, or in case of their decease without heirs, as aforesaid, so that the succession to the lands and estate above disponed, shall devolve on the husband, his heirs or assignees, then, and in that event, the heirs or assignees of the said husband, succeeding to the said lands and estate, shall be obliged, at the first term of Whitsunday or Martinmas next ensuing his death, to pay all the just and lawful debts due, or that shall happen to be due by him or his said spouse, and to free and relieve her, and the lands to be liferented by her, in the event foresaid, of the samen.”

The marriage dissolved by the death of the husband, leaving children, and his creditors adjudged the wife's heritage; and the question was, Whether they could affect her reserved liferent ? Lord Auchinleck was of opinion that her liferent could be no more affected than if she had reserved a part of the estate, and given the rest to her husband, subject to the burthen of his debts; and with him agreed a majority of the Court, though the rest of the Lords thought the decision very dangerous.