COMPLETED INFEFTMENT.

209

security. Widow's claim to terce after payment of interest was sustained.1

But it would appear that the widow's claim would have been excluded if the disponee instead of holding base of the disponer had entered with the superior. The question, however, was not raised with the widow.2

Where the Trust did not flow from the Husband and he was never infeft.-Where a third party has disponed to trustees for behoof of the husband and he was never infeft, but had only a right to call on the trustees to denude in his favour, his widow cannot claim terce.s

When was Husband's infeftment completed ?—The widow of a proprietor whose title is still personal has no claim to terce.

A resignation in favorem being virtually a mere authority to the superior to make a new grant did not divest the resigner of the fee. It was his widow and not the widow of the disponee in whose favour the new graut was to be made who was entitled to terce. But entry by resignation is now abolished.*

5

Resignation ad remanentiam stood on a different footing. It reinvested the superior in the dominium utile and merged the two estates. When the vassal conveys the property to the superior, the latter now makes up his title by recording the disposition, and by a minute of consolidation. If the vassal were to die before the disposition had been recorded his widow would take her terce. Similarly, in the case of adjudication of lands, if the decree or abbreviate has not been recorded, the debtor's widow is not excluded from her terce."

Terce opens at Husband's death. The widow's right commences at the death of her husband. She is entitled to her third of the rents payable at the term after his death."

1 Bartlet v. Buchanan, Feb. 21, 1811, F.C.

2 Fr. ii. 1092; Gardyne, supra. 3 Fr. ii. 1092; More's "Notes to Stair," p. ccxix.; M'Laren on "Wills," i., p. 85.

4 Conveyancing Act (37 & 38 Vict. c. 94), § 4.

5 Conveyancing Act, § 6; see 1 Bell,59; Bell's Prin. § 1600; Fr. ii. 1093.

Fr. ii. 1095, Bell, 1.c.; Carlyle v. Crs. of Easter Ogle, 1725, M. 15,851. 7 Belschier v. Moffat, 1779. M. 15,863; Fr. ii. 1082.

Р

How Terce is excluded.-(a.) By direct discharge. In ante-nuptial marriage-contract.-A woman who contracts, before her marriage, to take a provision on her husband's death, and in respect of such provision discharges her legal rights, is bound by her contract.

He may leave large estates and she may have contracted to take £50 a-year, but she has made her bargain and must stand by it. If she were a minor at the date of the deed she may reduce it on proof of enorm lesion. It has been held that enorm lesion means positive loss and not merely the loss of contingent gain, so that a woman without fortune at marriage cannot successfully urge this plea.

Ill.—A girl, eighteen years old, agrees to take £80 in lieu of legal rights. Husband at marriage had income from business of over £2000 a-year. At his death his estate was worth £50,000. Held, diss. Lord Rutherfurd Clark, that she had not sustained enorm lesion.1

(b.) By post-nuptial deed.—A wife may renounce her terce and jus relictae, stante matrimonio. If her renunciation was gratuitous, or for a consideration grossly inadequate, she may revoke it as a donation.2

(c.) By acceptance of a conventional provision in a testamentary deed of the husband. Doctrine of election.-Where there is no ante-nuptial contract, and the husband has made a voluntary provision for his widow as in full of her legal rights, she is put to her election-i.e., has the choice of taking either the provision in the deed, or otherwise claiming her terce and jus relictae. And if she dies without having had a reasonable opportunity of making this election, her right to do so transmits to her representatives.3

Where the provision in the deed is not expressly in full of legal rights, the onus of showing that this was not intended lies on the widow.

By the old law, unless a provision for a widow expressly bore to be in discharge of her legal rights, she could claim both.

1 Cooper v. C., 1885, 12 R. 473, rev. on ground that as she was an Irish minor her contract was voidable without proof of lesion, 1888, 15 R. H.L. 21.

2 Supra, p. 128.

3 Edward v. Cheyne, 1888, 15 R. H.L. 33; but see Pringle's Executrices, 1870, 8 M. 622.

:

WHEN EXCLUSION PRESUMED.

211

This was remedied in consequence of a case in which the report runs "The Lords delayed to give interlocutor till they saw if the Parliament in June would make any statute anent terces."

The same year an Act was passed, providing: "That in time coming where there shall be a particular provision granted by an husband in favours of his wife, either in a contract of marriage, or some other writ before or after the marriage; that the wife shall be thereby secluded from a terce out of any lands or annual rents belonging to her husband, unless it be expressly provided in the contract of marriage, or other writ containing the said provision that the wife shall have right to a terce by and attour the particular provision conceived in her favours." 2

The Act only shifts the onus. If it appears from the deed that the husband's intention was not to exclude terce, the widow will take it in addition to the conventional provisions.

Ill.-Husband makes a settlement, giving his wife an annuity out of Russian estates, and directs his trustees to sell an estate in Scotland and give her the life-rent of the price. This last part of the settlement failed from informality. The widow claimed terce of the Scots heritage, and it was held that as he meant her to have a life-rent of the price of the whole, it was clearly not his intention to make the other provisions a bar to terce.3

Ill.-Husband conveys to his wife, by separate deeds, estates both in England and Scotland. The deeds disponing the Scotch estates are reduced on ground of incapacity and informality. Widow, by House of Lords reversing Court of Session, found entitled to terce, on ground that his intention was that she should have much more than a terce of his Scotch estate in addition to the land in England.*

A distinction has been made in the House of Lords between unilateral and bilateral deeds as affected by this Act. It was said that the Act applies only to contracts or other bilateral

1 Craigleith v. Prestongrange, 1681, M. 15,845.

2 1681, c. 10 (c. 12, Thomson's Ed.).

3 Jankonska v. Anderson, 1791, M.

15,868 and 6457.

4 Ross v. Aglianby, 1797, M. 4631, rev. sub. nom. Lowthian v. Ross, 1797, 3 Pat. 621.

writs.1 But this distinction does not followed in later cases.

seem to have been

In general, if a widow is left the life-rent of the whole estate, this will be presumed to be in lieu of all legal rights.2

Acceptance to be valid must be made in full and fair knowledge of her legal rights. Even when the widow has expressly accepted the conventional provision and discharged her legal rights, she will be entitled to fall back upon them, if she can show that she was not fairly put in possession of all material facts, and thereby placed in a position to judge which course would be more for her advantage. And the Court will be slow to think she was fairly put in this position where her choice was clearly against her interest, and she had no separate agent to advise her.

In one case a widow attended a meeting of trustees and signed a minute accepting conventional provisions in lieu of legal rights. For some years she received interest from the trustees. By the will she forfeited all provisions on second marriage, which occurred. On proof that she was never informed that her second marriage would not have deprived her of her legal rights, and that she had no independent legal advice, she was held not to be barred from repudiating the will.3

It would appear that there may be circumstances in which the widow is allowed to acknowledge the will for a limited time or purpose and yet keep open her right to repudiate it and recur to her legal rights.

Ill.-A widow by the will was entitled to the life-rent of a house and to the furniture, and to the right of carrying on the husband's business as long as she remained unmarried. She signed a deed accepting the provisions as in satisfaction of her legal rights," so long as I continue to carry on said business." On her desiring to marry again she was held entitled to repudiate the will.1

In deciding whether the right to repudiate is still open the Court may consider whether injury has been done by the

1 Lowthian, supra.

2 Ersk. iii. 3, 30.

3 Donaldson v. Tainsh's Trs., 1886,

13 R. 967.

4 M'Fadyen v. M'F.'s Trs., 1882, 10 R. 285.

WIDOW'S ACCEPTANCE IMPLIED.

213

delay or prejudice would be caused by allowing the widow to elect.1

Implied acceptance.-Where no minute or deed of acceptance has been signed by the widow her consent to take under the will and renounce her legal rights may be inferred from her actings. But these actings must afford clear and unequivocal evidence of her intention to make this choice. And, however clearly proved, her election will not bind her unless she made it with a clear knowledge and understanding of what her legal rights were.2

A widow attended meetings of trustees. She married again within a year. By so doing she forfeited all benefit for herself, but received from the trustees an annuity for the board and education of the children. After ten years she was found entitled to repudiate.2

A wife who signs her husband's will in token of her consent will not necessarily be presumed to have consented to the whole deed. But if it includes a life-rent to her of the whole estate this necessarily implies a renunciation of legal rights. If she survive and die without revoking her consent as a donation, her representatives cannot claim to take legal rights and repudiate the will.3

Terce barred by entail.-A husband cannot by making an entail of his estates defeat his widow's right to terce. But a third party granting an entail is in a different position. As the giver of a donation he may dictate the terms of it. Precisely as a person giving property to a wife may exclude the jus mariti and jus administrationis of her husband, so an entailer may direct that the widows of the heirs of entail shall not enjoy terce. And this is a clause in all entails. It is immaterial that the entail fails to fulfil the statutory requirements as, e.g., by not containing clauses irritant and resolutive. And it need not have been recorded. The principle upon which it is a good exclusion of terce is simply

1 M'Fadyen, supra; Selkirk v.Law, 1854, 16 D. 715; Donaldson, supra. 2 Hope v. Dickson, 1833, 12 S. 222. 3 Baxter's Trs. v. B.'s Executor, 1884, 11 R. 996; aff., Edward v. Cheyne, 1888, 15 R. H.L. 33; see

Ersk. iii. 3, 30.

4 Gibson v. Reid, 1795, 15,869 and 5891; Hay Newton v. H. N., 1867, 5 M. 1056, aff., 1870, L.R., 2 Sc. App. 13.