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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomsons v Creditors of Alice Thin. [1675] Mor 5939 (8 December 1675) URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor1405939-141.html Cite as: [1675] Mor 5939 |
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[1675] Mor 5939
Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IV. The Husband's powers with regard to the management of the common stock, and of the Children.
Date: Thomsons
v.
Creditors of Alice Thin
8 December 1675
Case No.No 141.
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The husband has power to dispose of the moveables in communion, to take effect in his life or after his death, provided it be exercised sine dolo. But a bond being granted to a neice, payable after the death of the granter and his wife, ‘in case he left no heirs of his own body,’ the Lords found the circumstances of fraud here alleged, viz. That at the date of the bond the granter had not an estate sufficient to satisfy the bond, leaving any thing considerable to his wife, not otherwise provided, and that the bond bore a condition of not having heirs of his own body, relevant to this effect, that the bond should not affect the wife's half.
*** Gosford reports the same case: In a multiplepoinding raised at the instance of Mr James Eleis, who was heretor of the dwelling house, wherein both James Masterton and his wife (Alice Thin) had died, and was preferred to both creditors, for the house-mail, as having jus tacitæ hypothecæ, and had order for satisfying thereof, to dispose of the moveables remaining in the house at the best rate; there being a competition betwixt the creditors of the husband, and the creditors of the wife, who should be preferred to the superplus, it was alledged for Margaret Thomson, that she ought to be preferred to Baillie Hall and other creditors of Alice Thin, because the deceased James Masterton, had granted bond to her and her sister, for payment of the sum of five thousand pounds at the first term after his own and his wife's decease, and the longest liver of them two, failing heirs of his own body: Likeas, thereafter he did make a disposition of his whole goods in favours of his wise Alice Thin, with the burden of his whole debts, who not only had accepted the same, but by confirmation of herself as executrix, and uplifting the sum of two thousand merks due to her husband by Sir William Thomson, she had homologated the said disposition, affected with her husband's debts; and therefore the saids Thomsons ought to be preferred to her creditors, who could pretend no right to any of the moveables, which were possessed in common betwixt him and
his wife until he died. It was alledged for the creditors of Alice Thin, that notwithstanding, they ought to be preferred to the just half of the moveables which were possessed by the husband and the wife, the time of the dissolution of the marriage by the husband's death; 1mo, Because this bond was granted for no onerous cause, not being obligatory against the heirs of James Masterton's body, and only payable after his decease and his wife's, and granted to his own neices, and therefore unless they could instruct an onerous cause, and that they were true creditors, it would only be interpreted in law, donatio mortis causa quæ equiparatur legato, and so was only payable out of the defunct's half of the moveables, and could not burden the wife's half, to which she hath right by the law and practique of this kingdom, especially there being no contract, nor no lands nor heritage, whereof she could crave a terce. It was replied by the saids Thomsons, that they ought to be preferred; not withstanding, because the bond did constitute the husband debtor; and his heirs not being of his own body, and the delay of the term of payment until after both their deaths, did not alter the nature of the bond; and during his lifetime he having the sole dominion of his moveables, so that he might sell or dispone thereupon, and contract debt whereby they might be affected, he having granted this bond, the wife could have no right but deducto ære alieno, seeing by our law the husband during the marriage hath not only nudam administrationem but is perfect dominus omnium mobilium. The Lords did prefer the saids Thomsons upon the reasons alledged for them; which seems hard, seeing the moveables were not affected, nor disponed by the said bond, and that it being granted for no onerous cause, by her husband to his neices, and being latent until the dissolution of the marriage, in law it could only be interpreted donatio mortis causa; but to extend it to the nature of a debt, to take away the wife's part of moveables to which the law doth provide her, having no other provision, and the whole moveables being possessed in common, it was strange and of a dangerous consequence, seeing thereby by such private bonds for no onerous cause, impetrated by such near relations, wives may be prejudged of their whole livelihood and what they had right to by law. There after the saids Thomsons craved to be preferred upon that ground, that the said Alice Thin had accepted of a disposition of her husband's whole estate, personal or real, with the burden of his whole debts, which she had so far homologated, that she did uplift from Sir William Thomson two thousand merks, which was resting by a bond granted to her deceased husband, and thereby she became liable to his whole creditors, for his whole debts, and they might affect the whole moveables which were possessed in common, or the money which was the price and came in place thereof. It was alledged for Baillie Hall and the wife's creditors, that they ought to be preferred, notwithstanding, because any acceptation of the said disposition, and making use thereof, could not be interpreted, that she did intend to prejudge herself of the half of the moveables which belonged to herself jure relictæ: Likeas, notwithstanding of the disposition, she did confirm herself executrix to her husband, and gave up an inventory only of the half of the moveables belonging to the husband; and whereas the disposition was burdened with the payment of the debts, it could import no more but that she should be liable to all his creditors, in so far as she had right by the disposition, and be countable to the creditors of her husband for all that belonged to him, in so far as it would extend to, but could never be extended to what truly belonged to her, she being no ways personally obliged, a I consequently her creditors could only have right to what truly belonged to herself proprio nomine, whether by virtue of her communion of the goods possessed, the time of the disolution of the marriage, or whatever she did acquire thereafter, especially they having a disposition from her to the saids moveables, and by virtue of an instrument having taken possession, and intimated the same to Mr James Elies, in whose hands they were consigned, before the Thomsons had done any diligence to affect the same. The Lords did prefer the Thomsons notwithstanding, as being creditors to the said Alice Thin, by virtue of the disposition and acceptation thereof; and granting a discharge to Sir William Thomson, and found that a naked instrument taken, did not give a real right to goods or price thereof; which seems also hard, seeing dispositions made to any person with the burden of debts, they never becoming personally obliged by their bonds to creditors, cannot be extended, but to make them liable so far as they have benefit by the disposition; and it were of a dangerous consequence, to a person that is ignorant of the disponer's private debts, should he be farther liable upon that ground; it being against common reason to think, that by making use of a right or disposition, they intended to involve all their own estate, whereas they could not look upon any such disposition, but as a favour and benefit; and the question being as to the right of moveables, which were extant, the creditors of Alice Thin not only having a disposition made to a conjunct person in their favours to their behoof, but having imtimated the same by taking instruments, and first doing diligence by intenting action, it was hard to prefer the creditors of the husband whose diligence was posterior. *** This case is also reported by Dirleton: 1675. November 24.—In a suspension of multiplepoinding, at the instance of Mr James Elies of Stainhopmilns against John Hall and the other creditors of Mrs Masterton, and against the creditors of James Masterton, it was found, that Mrs Masterton the relict, not being confirmed executrix creditrix to her husband, her husband's creditors are preferable as to any goods and debts extant and undisposed of, which belonged to her husband; in respect albeit the right of the same was established in the person of the executrix,
yet they did pertain to her as executrix, and as having a trust and office, and to the effect the testament may be executed; and what is confirmed should be made furthcoming to all parties having interest, and consequently to the defunct's creditors, and not her own; and the executrix has not an absolute property in the goods confirmed, but only qualified and for administration, and to the effect foresaid. 2do, It was found, that a servant, for his fees, is not privileged and preferable to other creditors.
3tio, James Masterton having granted a bond for payment of a considerable sum, after his own and his wife's decease, in case he should not have children of his own body; it was alledged, that the said bond, being without an onerous cause, and not being effectual until after his decease, as said is, and failzieing of heirs of his body, was of the nature of donatio mortis causa, and could not affect the relict's part; whereunto it was answered, that the said bond being granted when he was in liege poustie, and had power as dominus to dispose of the goods, or to grant bonds which might affect the same, the relict could have no legitim, but of the free gear, the said bond and other debts being satisfied.
Some of the Lords were of opinion, that the bond should affect the hail goods; but others thought that it ought to affect only the defunct's part, seing there is a communion betwixt husband and wife; and albeit the husband is said to be dominus, and has full administration of the same, so that he may dispose thereof, and grant bonds for onerous causes; yet he cannot, in prejudice of the communion and the wife's interest foresaid, dissipate and give away the same by fraudulent donations, of purpose to prejudge either the relict, or the children of their legitim: but this point was thought fit to be heard and debated in præsentia.
1675. December 9.—By our custom, and the custom of diverse other nations, though there be a communion betwixt a husband and a wife as to moveables, yet the husband during the marriage has not only administration, but is dominus actu, and may dispose of the same, not only for onerous causes, but by way of donation; and the wife has only a right and interest habitu, which exit in actum after the marriage is dissolved, as to all the moveables belonging to them the time of the dissolution.
And yet if the husband dispose of his moveables in fraudem, and of purpose to prejudge the wife, and to evacuate her legitim and part of the moveables, as was alleged in the case in question, the circumstances being such as did evince the husband's fraud and purpose to settle his estate upon his near relations after his death, in prejudice of the wife's interest, such donations will not be sustained.
The said James Mastertoun having made a disposition in favours of his wife, with the burden of his debts, so that his creditors should not be prejudged,
but that the said right should be affected with the said debts, it was, debated among the Lords, what the import should be of the said clause, and if the creditors of the husband had thereby a real interest in the goods, or only a personal action against the receiver of the disposition: and it was thought that the goods being extant and undisposed of, the receiver of the disposition with the said quality was in the case of a trustee or executor; and the creditors of the husband competing upon their diligence, to affect the same with those of the wife, would be preferable; but if they were disposed of by the wife, tho' the price be not employed for the use of the creditors, though they be extant, the husband's creditors have no interest in the same, seeing the wife was domina, and might sell the same; and buyers finding her in possession, are not concerned to enquire what way she should employ the price. Vide 17th December 1675, Thomson contra Eleis, voce Moveables. *** See Stair's report of of this case, No 6. p. 3593.
The electronic version of the text was provided by the Scottish Council of Law Reporting