Scottish Court of Session Decisions

Subject_1 HOMOLOGATION.
Subject_2 SECT. VIII.

Homologation of part, whether Homologation of the whole.

Corsar
v.
Carmichael

Date: 27 July 1687
Case No. No 88.

A husband granted to his wife, not otherwise provided, a liferent provision, which was therefore found not revocable; yet having de facto revoked part of it, and bequeathed that part to his father, the relict discharged the debtor of an year's annualrent of the remainder. The Lords found this an homologation of her husband's revocation.

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Alexander Corsar in Dysart gave in a bill against his son's relict, now spouse to George Gowan writer, pretending she liferented all his means, and craving the Lords would modify to him an aliment out of it.—Quæritur, If the son, or the son's relict be bound to aliment her father-in-law, as parents are bound to aliment their son's?

December 1.—The case between Anna Carmichael and her husband against David Corsar, mentioned 27th July 1687, being reported by Redford; it was alleged, 1mo, Her liferent of 7000 merks was donatio stante matrimonio.—Answered, There was no contract of marriage, and this came in place of it; and though the husband was dominus of the sum, yet it was limitatum dominium, he could not gratuitously to her prejudice assign the annualrent of 3000 merks of it to his father. 2do, Alleged, She had restricted herself to the annualrent of 4000 merks by a discharge.—Answered, Homologations must be very clear, and the discharge is opponed.——The Lords found, That the first liferent provision conceived in favour of Anna Carmichael, taken by her former husband, is not a revocable donation, there being no former provision or contract of marriage betwixt them; but remitted to the Ordinary to hear the parties, whether the relict got right to other debts from her deceased husband after the said liferent provision; and also to be heard upon the discharge produced, or any other ground of homologation by the relict, of her husband's assignation to David Corsar, his father. And this last point being accordingly debated, and again reported by Redford, on the 10th of February 1688, the Lords found her discharging Balfour of the annualrent only of 4000 merks, as a part of the 7000 merks, by virtue of the assignation made to her by her first husband, was a homologation of the 3000 merks left in the same assignation by her husband to David Corsar his father, and therefore restricted her; though it was alleged that homologations must be explicit and express, especially against women, in quibus ignorantia juris excusatur; and that her husband's heir is quarrelling that assignation in a reduction ex capite lecti; and if he prevail, then she may recur to her liferent of the whole 7000 merks, seeing it Will be then causa data causa non secuta. See Husband and Wife.

Fol. Dic. v. 1. p. 383. Fountainhall, v. 1. p. 471. & 485.