[1629] Mor 5932
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: Brown
v.
Dalmahoy
27 February 1629
Case No.No 136.
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James Brown having left his wife, N. Nasmith, and N. Brown, his daughter, co-executors to him, his wife afterwards marrieth James Dalmahoy, and the daughter having recovered decreet against her mother, and James Dalmahoy for his interest, to make her pay off L. 1100, as the just half of the free goods contained in her father's testament;—after her mother's decease, she convenes James Dalmahoy, as intromitter with his wife's goods and gear, to make payment to her of that sum contained in the former decreet. But the Lords would not sustain it, to make him universal intromitter, but only for making forthcoming of what particulars the pursuer could prove he had intromitted with appertaining to his wife.
*** Durie reports the same case. Agnes Brown, the only bairn procreated betwixt umquhile Brown her father, and Naismith her mother, being executrix confirmed to her said umquhile father, obtained decree against her mother, who was executrix confirmed with her, and against James Dalmahoy her second husband, for his interest, for payment of the equal half of the inventory of the goods confirmed, contained in the said testament; and the said relict thereafter dying, after her decease, the second husband is pursued by the said Agnes Brown, and her tutor, as intromitter with the goods and gear of his said spouse, hoc nomine to make payment to the pupil, of the particular sums contained in that sentence, obtained against his wife, and himself for his interest; wherein the Lords found, that albeit sentence was recovered against his wife before her decease, and against himself for his interest, yet that he could not be convened hoc nomine, as vitious intromitter with her goods, to pay her debts, he being her husband, and so dominus omnium ejus bonorum, and continuing only in that
possession after her decease, which he once, as husband, had lawfully acquired, and so thereby he could not be convened as universal intromitter, to make him a vitious intromitter, and liable to her debts; but the pursuer might convene him to make forthcoming the particulars intromitted with by him, pertaining to his wife, for payment of that debt, or might confirm herself executrix, as creditrix to her, that she might be paid off her debt, for the which they found the process might be sustained. See Passive Title. Act. Burnet.
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