:

INEQUALITY MUST BE GROSS.

129

varied by a post-nuptial deed. The law is thus stated by Erskine "Where the interest of the husband and wife have been settled by ante-nuptial contract, post-nuptial deeds are revocable in so far as they either add to or diminish the provisions of the first contract without a valuable consideration on the other part, for every such provision adding to the wife's prior settlement is a donation by the husband to her, and every deed by which the wife renounces the least share of her former provisions is a donation by her to her husband."1 This is broadly stated, and must be taken with the following important limitation.

Where there is value received, hinc inde, the inequality must be gross before the deed will be reduced.-The phrase of Lord Eldon in the leading case has been always quoted. The Court will not weigh "in nice scales" the value given and received. If there is anything like equality the deed will stand. But where the inequality is excessive the doctrine of donation is applied.

Ill. An ante-nuptial contract contained reasonable provisions to wife. By a post-nuptial mutual settlement the spouses disponed their whole estate to the survivor, failing issue. The husband had £16,000, the wife had nothing but "expectations" from an uncle which ultimately realised less than £800. Held the provisions were so unequal that husband could revoke.3

Ill. By mutual settlement the spouses conveyed to trustees their whole estate for the survivor in life-rent, and the children of the marriage in fee. In the event of the surviving spouse marrying again, his or her life-rent was to cease and the fee to become at once divisible among the children. The wife's whole estate consisted of £400. From this the husband's jus mariti was excluded, and by the settlement it went to the children. The husband had £1000, and heritage yielding £50 a-year. The wife predeceased, and the husband claimed to revoke except as regards the wife's £400. It was held he was entitled to do so. For here he had received

1 Ersk. i. 6, 30.

2 Hepburn v. Brown, 1814, 2 Dow, 342; Mitchell v. M.'s Trs., 1877, 4

R. 800.

3 Beattie's Trs., 1884, 11 R. 846.

K

nothing in exchange. The wife's £400 was settled on the children, and he did not propose to interfere with it. Whereas he had divested himself of his whole estate, and would forfeit it entirely if he married again.1

· Donation depends upon intention. Where the alleged donor expends money for the benefit of both spouses, this is not donation.

Ill. A husband rebuilds, at his own expense, a house on his wife's property. Held that this was not a donation so as to entitle him to revoke it and claim compensation from his wife's heir-at-law.2 He was presumed to have had his own. advantage in view as much as his wife's, and was in a similar position to a tenant or life-renter who cannot claim for improvements when his possession ceases.

An accession of fortune to the wife, stante matrimonio, will prevent the Court regarding as a donation an addition by the husband to her ante-nuptial provisions.3

In estimating whether the Bargain was a reasonably fair one, the Value of the rights of each at the Dissolution of the Marriage is to be looked at.-Although at the date of the contract the consideration hinc inde might be fairly equal, the circumstances of the parties might entirely change during the subsistence of the marriage. A wife might abandon her legal rights for £50 a-year at a time when, if her husband died, she would receive less, rather than more, by claiming her jus relictae and terce. But during the marriage the husband may become a millionaire. Is she then to be bound by her bargain? The law is settled in the negative.

Ill. The spouses executed a contract of voluntary separation, by which the husband bound himself to pay the wife £30 a-year. She renounced all her legal claims. The husband died, leaving nearly £9000. Held the wife could revoke and take her legal provisions.*

Ill. By ante-nuptial contract the wife was entitled to (1)

1 Melville v. M.'s Trs., 1879, 6 R. 1286.

2 Rankin v. Wither, 1886, 13 R. 903.

3 Countess of Oxenford v. The Vis

count, 1664, M. 6136.

4 Hunter v. Dickson, 1827, 5 S. 266, aff., 1831, 5 W. and S. 455, and cases cited.

REASONABLE PROVISIONS.

131

an annuity of £100; (2) life-rent of all husband's acquirenda. By a post-nuptial mutual trust-deed, she agreed to take an annuity of £300 a-year, which she would forfeit on second marriage. The husband's means greatly increased during the marriage, and he left more than £20,000. Held she could revoke and take the provisions in the ante-nuptial contract.1

A Reasonable Provision is not a Donation Revocable.— Where the granter is under a natural obligation to provide for the grantee, a deed to this end is not revocable as a donation, if two conditions are fulfilled. (1.) The granter must be solvent at the date of the deed. (2.) The provisions must be reasonable in amount-i.e., suitable to the rank and fortunes of the parties. If they are excessive they will only be reduced quoad excessum.2

And although a wife is not perhaps under a natural obligation to provide for her husband, yet it can hardly be doubted that a post-nuptial settlement by her of her estate for behoof of her husband and children would be in most circumstances secure against revocation.3

In considering what is a reasonable provision, it is an important element that there is no ante-nuptial contract.

Ill. No ante-nuptial contract. Husband insured his life and took policy in favour of his wife and her heirs. Shortly before his death he was sequestrated. The creditors claimed the value of the policy, and their claim was sustained by the Court of Session. But the House of Lords reversed this judgment, and found that as the widow was not otherwise provided for, and the sum in the policy was reasonable, it was not a donation revocable by the husband, and the wife was entitled to it as a reasonable provision. Where there has been an ante-nuptial contract, which is followed by a post-nuptial deed, the question of gain or loss is to be determined by reference to the ante-nuptial contract. Marriage is the highest consideration

1 Thomson v. T., 1838, 16 S. 641. In Mitchell v. M.'s Trs., 1877, 4 R. 800, Lord Ormidale and L.J.C. Moncreiff expressed the opinion that gross inequality, either at date of deed or at dissolution, would be a ground of revocation.

2 Gibson's Trs. v. G., 1877, 4 R.

867; Melville v. M.'s Trs., 1879, 6 R. 1286; Craig v. Galloway, 1860, 22 D. 1211, rev. 1861, 4 Macq. 267.

3 Ersk. i. 6, 30; Stirling v. Crawfurd, 1716, M. 6111; Fr. ii. 943; but see Inglis v. Loury, 1676, M. 6131. 4 Craig v. Galloway, supra.

known to the law, and in the ante-nuptial contract parties have solemnly determined their mutual rights. Although, therefore, the wife may have, by an ante-nuptial contract, accepted £50 a-year in lieu of her legal rights, and the husband be a millionaire, any additional provision he may make for her by post-nuptial deed is a donation revocable.1

Mr. Montgomerie Bell says that the question is still open whether in estimating lesion the date of the contract, or the date of death, is the tempus inspiciendum. But it is submitted that the authorities sufficiently bear out the doctrine in the text.2 And this has the authority of Lord Fraser.3

It is not possible to make a Provision Secure against the Husband's Creditors unless it is Secure against the Husband himself. The doctrine of "reasonable provision" will not be applied unless the subject is placed outside the husband's control.

Ill.-Husband took title to heritage in favour of himself, and his wife in conjunct life-rent, for her life-rent use allenarly, and children in fee, but reserving to himself power to sell, or burden, or even gratuitously dispone the subjects without wife's consent. He was then solvent, and his wife was otherwise unprovided for. The husband died insolvent, and the wife claimed the subjects as a reasonable provision. But it was held that by the destination, the husband remained sole proprietor, and as he could revoke, his creditors could do the same. 4

No Post-nuptial Provision to take Effect stante matrimonio, will be sustained in a Question with the Husband's Creditors. It is an elementary principle of the law of bankruptcy that a man shall not be allowed to place his property

PROVISIONS STANTE MATRIMONIO.

133

in such a position that he gets the benefit of it, and yet it is protected from his creditors in the event of his bankruptcy. He cannot, by declaring his income alimentary or non-assignable, or by any imaginable scheme, relieve himself from the legal obligation of applying his funds to pay his debts.

Ill.-A husband by post-nuptial deed conveyed to trustees £2600 which had come to his wife from her father. There was no ante-nuptial contract, and it fell under the jus mariti. He bound himself to pay to the trustees from his own funds £2000. The purposes were to pay the life-rent to the husband, and after his death to the wife if she survived, and the fee to the children, natis and nascituris. The provisions were declared alimentary. He was then solvent. He never implemented his obligation to pay the £2000, and subsequently became bankrupt. It was held that the life-rent went to the trustee in his sequestration.1

Ill.-A husband, being solvent, executed a heritable bond, by which he bound himself to pay his wife an annuity of £200 during his life, and £500 after his death, in lieu of her legal rights. On his insolvency it was held that the bond was reducible by his creditors, quoad the annuity of £200 stante matrimonio.2

Ill. A husband who had £10,000, vested £5000 in trustees to pay the interest to his wife during the subsistence of the marriage, for the better aliment of herself and family. She had no other provision. Held the deed was revoked by his subsequent sequestration.3

But when a fund is conveyed by the husband to trustees, the conveyance is not revocable in so far as it is a reasonable provision for the wife, and the trustees will not be entitled to denude, although both the spouses are willing to concur in granting them a discharge.1

1 Miller v. Learmonth, 1871, 10 M. 107, where the authorities are fully given; aff., 1875, 2 R. H.L.

62.

2 Kemp v. Napier, 1842, 4 D. 558. 3 Dunlop v. Johnston, 1865, 3 M. 758; Aff., 1867, 5 M. H.L. 22. The case of Wright v. Harley, 1847, 9 D. 1151, may be regarded as over

ruled. In it a husband, on the narrative that he was of improvident habits, and easily imposed upon, conveyed his estate to trustees to maintain and clothe himself, and to pay the balance to his wife. The wife's provision was sustained in a question with a creditor.

4 Low v. L.'s Trs., 1877, 5 R. 185.