Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Christian Hoome
v.
Andrew Gieb

Date: 14 March 1634

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Andrew Gibb married Christian Hoome, a widow; and, by contract of marriage, her whole moveables and sums being contracted to him after the marriage, she diverted from him, by persuasion of her first husband's bairns, and menaced to put hands in herself, except the husband discharged the contract of marriage, and reponed her to dispone upon all the gear that she brought with her at her pleasure. Whereupon, by advice of both their friends, a new contract was drawn up, whereby the first contract was discharged, and each party got power to dispone upon their own gear. Notwithstanding, after the wife's decease, the husband takes a dative ad omissa, in the person of another, and pursues Andrew Gibb for such part of the goods as would have fallen to the wife. He excepts upon the later contract made by advice of friends. It was replied, That this contract was unlawful and null, being inter virum et uxorem stante matrimonio, and could not subsist but so long as the wife lived. It was answered, That this was donatio remuneratoria, and, not being revoked by the wife during her lifetime, was ratified by her death, as also by her, in her own time, before a judge. The Lords found the exception relevant, founded upon the donatio remuneratoria contained in the last contract.

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