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tical extinction of the jus mariti. Under the former law, if the wife brought her husband a fortune, and he died intestate and childless, then in the absence of any conventional arrangement one half of that fortune—assuming it to be moveable estate-passed immediately to his relatives, while, if there were children, even although they were not her's, but children of a previous wife, she could only keep one third of what had been her own. Now no part of her moveables passes to the husband stante matrimonio: and if she survives him she retains her own property, and takes as before her jus relictae.

$109. On the death of either spouse leaving heritable courtesy, property, the law remains as it was.

(a) If the husband dies first, the wife has her terce, or a liferent of one third of the heritage in which he died infeft.

(b) If the wife dies first, the husband has his courtesy, the liferent of her heritage subject to certain conditions already explained.

Terce.

no legal claim to heritage.

In neither case have the children any claim by law. Children have If either parent dies intestate the eldest son will take as heir-at-law, but if father or mother chooses to dispose of his or her heritage by will, none of their children have any

claim.

This, it need scarcely be added, applies only to a feesimple proprietor. In the case of an entailed estate one or other of the children must succeed, but this is in virtue of the will of some former proprietor. Whoever so succeeds takes as heir of entail, that is as heir of provision, not as heir-at-law.

CHAPTER V.

THE CONVENTIONAL ARRANGEMENTS BY WHICH THE PROPERTY

OF MARRIED PERSONS IS PROTECTED AND THE INTERESTS
OF THEMSELVES AND OF THEIR CHILDREN THEREIN ARE

REGULATED.

Classes of family deeds.

110. These arrangements are effected by means of
1. Bonds of provision.

2. Destinations.

3. Deeds of entail.

4. Marriage contracts, which may be

(a) Ante-nuptial.

(b) Post-nuptial.

5. Policies of assurance under the Act of 1880.

For our present purpose we need deal only with marriage.

contracts.

Marriage

contract

overrides legal provisions.

1.-ANTE-NUPTIAL CONTRACTS OF MARRIAGE.

§ 111. No deed, known in practice, plays a more important part in the affairs of modern life than an ante-nuptial contract of marriage; for, notwithstanding all that the law has provided, by custom or statute, in reference to the interests of husband and wife in their property and to the interests of children after the death of their parents, it is permitted to persons about to marry to alter the whole of these provisions, almost in any manner and to any extent they may think fit. As put by Spotiswood, the "legal provision only takes place when there's no contract or agreement betwixt the parties by

which the determination of law may be altered; for in this case, as in sundry others, provisio hominis tollit provisionem legis." The Married Women's Property Act, indeed, specially and carefully provides that "nothing herein contained shall exclude or abridge the power of settlement by ante-nuptial contract of marriage."

practice.

The practice of making contracts of marriage prevailed Roman under the Roman empire. The law made certain regulations, but these could be set aside or modified pretty much as the parties desired,1 and marriage contracts, tabulae dotales, were as much in requisition in imperial Rome as they are in Great Britain to-day, and on many monuments of art we see the tabulae in the hand of the bridegroom. These instruments, however, referred solely to the dos, and were much more limited in their operation than our deeds. Thus it was not permitted to a father to bargain, in a marriage contract, that the sum settled upon his daughter should be in full of what she would claim from his estate. Nor could those testamentary arrangements, which form so large a part of the modern settlement, be introduced into a Roman instrument.3

2

§ 112. Professor Spotiswood cynically remarks that the old opinion marriage contract " expresses the condition of the marriage

1 To be effectual, Roman marriage contracts behoved, like other contracts, not to be contrary to good morals or to be in violation of any positive law. The rule of the law of Scotland is the same.

So, too, the Code Civil provides, § 1387-"The law does not regulate the conjugal association as respects property, except in default of special agreements, which the married persons may make as they shall judge convenient, provided they are not contrary to good morals."

2 Dig. 38. 16. 16.

3 Code, 2. 3. 15. This is technically known as ¿ŋλokλnpovoμía. All bargains as to mutual succession were void; "Quia auferebant testandi liberam facultatem." Sir George Mackenzie, Select Pleadings, p. 50 (Edinburgh, 1673, 4to).

of marriage contracts.

Object of the deed as now

used.

Tocher.

for, nowadays, interest has a greater hand in making mar-
riages than love founded on a virtuous friendship contracted
by long acquaintance; and men first satisfie themselves
about the estate and fortune of the party before they begin
to love their person." If we are to take, as authorities, the
song writers of last century, there is little doubt that there
was some truth in this statement. Less than fifty years ago
an eminent judge gave a very blunt expression of his view
of the matter, "As to ante-nuptial contracts, a man buys a
wife as he buys a horse; he must buy her on conditions."1
The object of the marriage contract of the present day
is, by means of the machinery of a trust, to place a cer-
tain amount of the property of the spouses beyond their
own control and out of the reach of their creditors, as a pro-
vision for themselves and the children of the marriage; to
protect the wife's property against the husband and against
herself; and to cut off the legal rights of the parties and
their children. These are, however, comparatively recent
ideas. In the seventeenth and eighteenth centuries the
device of excluding the jus mariti and right of administra-
tion had not been developed; trustees, powers and limitations
were unknown, and the Scotch contract of marriage very
much resembled the deed nowadays in use in France under
the régime dotal.2

§ 113. The bride's dowry (maritagium) is with us known
as her tocher-which, curiously, is a purely Celtic word.
1 Per Lord Mackenzie primus in Guthrie e. Cowan, 21 Nov. 1846,
9 D. at p. 128.

2 Marriage contracts have a large literature in France, and books of
precedents are as plentiful as with us.

Settlements on marriage, in the English sense, are, however,
practically unknown in France. See an interesting article on "Marriage
Settlements according to English, and Marriage Contracts according to
French Practice" in The Cornhill Magazine (1863), viii. 666 et seqq.

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This was a sum of money paid or secured to the husband by the wife or her relatives.1 As a counterpart and as his contribution ad sustinenda onera matrimonii the husband Donatio also provided a certain sum.2 The combined amount it was propter the practice to "ware" or lend out upon wadset or some other form of landed security, or in the purchase of land.

1 See Balfour, Practicks, p. 99; and per Lord Murray in Kippen's Trustees v. Kippen, 3 July, 1856, 18 D. at p. 1164; Per Lord Neaves in Harvey v. Farquhar, 12 July, 1870, 8 M. at p. 975.

Dos was used for both terce or dower and dowry. "This Latin word, Dos, hes ane secund signification, conforme to the civil law of the Romans: And is called, that quhilk is giuen be the woman's friends with her, to the husband, and commonlie is called Maritagium (or tocher)." Regiam Majestatem, ii. c. 18 (c. 15, ed. Innes); Glanvil, vii. c. 1; Magna Charta, c. 7 (Stubbs' Select Charters, p. 298). See supra, pp. 3, 40. There is a curious note on this subject in the Law Reports, 2 Sc. App. at p. 193.

2 The husband's contribution was likened to the Roman antipherna (ȧvríøepvn) or counter-dos; in later days donatio propter nuptias. See Inst. 2. 7.3; Regiam Majestatem, ii. c. 15, ed. Skene, (c. 12, ed. Innes). This passage is not in Glanvil. The analogy, however, was in name rather than in substance. See per Lord Monboddo in Lowther v. M'Laine, 1786, Hailes, 1012.

As to the mutual contributions, see Liber Officialis S. Andree, Nos. 2, 4, 5, 7 (anno 1515), 8, 11, 12, 15, 20, 22, 140 (anno 1544), and elsewhere. On the marriage between Eric Magnusson, King of Norway, and Margaret, daughter of Alexander III. of Scotland, in 1281, the latter agreed to pay 14,000 merks sterling in dotem, while the King of Norway undertook to pay 1,400 merks of land "in donacionem propter nupcias." Acts of the Parliament of Scotland, i. p. 79; Rymer's Fœdera, vol. i. part 4, p. 83 (ed. Hag. 1739).

From the Epistle of Innocent III. to the Archdeacon of St. Andrews, 1203 (Decretalia Gregorii, iv. 20, c. 6), it would appear that this arrangement was in force in Scotland at that time.

The Act 1573, c. 55 (c. 1, ed. Thomson), the statute which authorises divorce on the ground of desertion, recognises tocher and donatio propter nuptias.

In England the notion at one time prevailed that an ante-nuptial provision by a husband for his wife operated as a purchase by him of her property. Vaizey, Treatise on the Law of Settlements of Property, i. p. 84 (London, 1887).

nuptias.

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