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Margaret Calander v Mary Russel. [1697] Mor 11493 (8 July 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor2711493-168.html Cite as:
[1697] Mor 11493
Where the cause of granting is expressed, that must be the rule.
Margaret Calander v. Mary Russel
Date: 8 July 1697 Case No. No 168.
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Margaret Calander, relict of James Russel, merchant in Stirling, pursues Mary Russel, his only daughter and heir, for paying her annuity of 600 merks, contained in her contract of marriage. Alleged, She is more than satisfied by her intromission with the moveables. Answered, Her intromission therewith being by virtue of a singular title, viz. as universal legatrix nominated, it can never be ascribed in payment of her jointure, the obligement whereof is heritable, and must affect the heir; likeas, she is provided to a part of the conquest, so she will apply her intromission with the moveables to her share of the conquest primo loco. Replied, Though the obligement for the jointure be heritable quoad creditorem, yet it is moveable as to the debtor, and will primo loco affect the executry; and the clause of conquest can take no place till the debts be paid; but ita est her obligement for a jointure is a debt. The Lords sustained the defence, and found the moveables liable primo loco for implement of her contract, and that her intromission therewith did satisfy the same pro tanto, seeing debitor non præsumitur donare; though the obligation for her jointure had tractum futuri temporis, and so it was contended ought only to affect the heir because right of that nature do properly accresce to heirs.
Fel. Dic. v. 2. p. 148. Fountainhall, v. 1. p. 783.
