Robertson's Trustee v. Robertson [1901] ScotLR 38_279 (22 January 1901)

Robertson's Trustee v. Robertson [1901] ScotLR 38_279 (22 January 1901)

The assignation was a donatio inter virum et uxorem, being an absolute gift to the wife during marriage, not a provision to take effect on survivance, and thus revocable and reducible at the instance of the trustee in sequestration. The purpose was to put the husband's estate beyond the reach of creditors, not to make a bona fide provision for the wife.

Citation
[1901] ScotLR 38_279
Parties
Pursuer: John M'Bain (Trustee of the sequestrated estate of John Robertson, merchant, Portree); Defender: Mrs Mary Margaret Ferguson or Robertson; Defender: Donald Robertson
Jurisdiction
Scotland
Judgment Date
22 January 1901
Procedural Posture
Civil Appeal / Inner House, Second Division, Appeal From Lord Ordinary
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled; decree of reduction granted.
Legal Topics
Donatio Inter Virum Et Uxorem, Revocation of Gifts Between Spouses, Bankruptcy and Fraudulent Alienation, Provision for Spouse, Reduction of Postnuptial Settlements
Family Law Bankruptcy Law Property Law Donatio Inter Virum Et Uxorem Revocation of Gifts Between Spouses Bankruptcy and Fraudulent Alienation Provision for Spouse Reduction of Postnuptial Settlements

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Parties

John M'Bain (Trustee of the sequestrated estate of John Robertson, merchant, Portree)

Pursuer

Mrs Mary Margaret Ferguson or Robertson

Defender

Donald Robertson

Defender

Procedural Posture

Civil Appeal / Inner House, Second Division, Appeal From Lord Ordinary

Legal Issues

  1. 1 Whether the assignation by Donald Robertson to his wife was a revocable donatio inter virum et uxorem and thus reducible at the instance of the trustee in sequestration.
  2. 2 Whether the assignation was an alienation contrary to Act 1621, cap. 18, as a gratuitous transfer to a conjunct and confident person when insolvent.

Ratio Decidendi

The assignation was a donatio inter virum et uxorem, being an absolute gift to the wife during marriage, not a provision to take effect on survivance, and thus revocable and reducible at the instance of the trustee in sequestration. The purpose was to put the husband's estate beyond the reach of creditors, not to make a bona fide provision for the wife.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled; decree of reduction granted.

Orders

  • Reduction of the assignation granted by Donald Robertson to Mrs Robertson.
  • Mrs Robertson ordered to deliver to the pursuer the titles of the leasehold subjects and the policy of insurance.