M'donald v. Fann [1913] ScotLR 716 (11 June 1913)

M'donald v. Fann [1913] ScotLR 716 (11 June 1913)

An unrevoked gift of moveables made by a husband to his wife during marriage, being revocable by law until the husband's death, forms part of the legitim fund for his children, as the gift does not become absolute until the donor's death, at which point the children's right to legitim vests and cannot be defeated by a revocable donation.

Citation
[1913] ScotLR 716
Parties
Pursuer: Mrs Catherine M'Donald or Fann; Defender: Mrs Margaret Nicolson or M'Donald; Defender: David Munro; Defender: Archibald Macdonald
Jurisdiction
Scotland
Judgment Date
11 June 1913
Procedural Posture
Civil / Appeal (inner House, Second Division)
Outcome
appeal dismissed; interlocutor of Lord Ordinary adhered to
Legal Topics
Legitim Fund, Donation Inter Virum Et Uxorem, Revocability of Gifts, Children's Rights in Succession, Husband and Wife Property Transfers
Succession Law Family Law Legitim Fund Donation Inter Virum Et Uxorem Revocability of Gifts Children's Rights in Succession Husband and Wife Property Transfers

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Parties

Mrs Catherine M'Donald or Fann

Pursuer

Mrs Margaret Nicolson or M'Donald

Defender

David Munro

Defender

Archibald Macdonald

Defender

Procedural Posture

Civil / Appeal (inner House, Second Division)

Legal Issues

  1. 1 Whether an unrevoked gift of moveables by a husband to his wife during marriage forms part of the legitim fund for his children upon his death, given the revocability of such gifts under Scots law.

Ratio Decidendi

An unrevoked gift of moveables made by a husband to his wife during marriage, being revocable by law until the husband's death, forms part of the legitim fund for his children, as the gift does not become absolute until the donor's death, at which point the children's right to legitim vests and cannot be defeated by a revocable donation.

Court Disposition

appeal dismissed; interlocutor of Lord Ordinary adhered to

Orders

  • Defender must account to the pursuer for legitim out of the funds transferred by the deceased to the defender.