Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. III.

Contracts of Marriage.

Dame Mary Wightman, and Others,
v.
Wilson

Date: 30 July 1777
Case No. No 52.

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Wilson, in his contract of marriage, settled on his wife a jointure of L. 100, and the disposal of L. 500, to be distributed by her among her children, and failing them among her relations, as she should think fit. On the other hand, she conveyed to her husband, in the contract, her whole effects, which are computed to be worth at least L. 700 Sterling. The marriage dissolved, by the death of the wife, without issue; but she had exercised the faculty in the contract, and disposed of L. 500 to her uncle and his heirs, who sued the husband for the same. Urged in defence, That the pursuers were barred exceptione doli; for the faculty had been granted on the faith of the wife's property amounting at least to L. 700, and it was denied that it had amounted to L. 200. Answered, The obligations were not co-relative, and that the faculty was valid though the husband had not received a farthing.—The Lords found, 1mo, That the provisions to a wife in a contract of marriage are presumed to be made in consideration of the marriage, not of the tocher, unless the words of the contract expressly bear so; and, 2do, That the wife's whole estate being conveyed to her husband, and computed to amount to L. 700, the presumption in law is, that it did amount to that sum; and, as the husband acquiesced in that valuation during eight years that the marriage subsisted, that presumption cannot now be taken away, at the distance of eighteen years, by any proof or contrary presumption; and therefore they found the defender liable. See Appendix.

Fol. Dic. v. 4. p. 17.