What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. III.
Heritable debts due by Husband or Wife.
Margaret M'Kenzie v. Robertsons
Date: 23 December 1668 Case No. No 22.
The relict's third of moveables is not burdened with bonds due by her husband bearing annualrent.
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Margaret M'Kenzie pursues the executors of her husband to pay her share of the moveables, who alleged absolvitor, because there was as much debt as would exhaust the whole moveables. It was answered, Non relevat, unless it were alleged that the executors had paid the debt; for the debts being yet due, it is jus tertii for them to allege thereupon; neither can this pursuer propone allegeances of payment, compensation, or any other, or the defenders reply upon the debts belonging to third parties, unless they were pursuing themselves; but the pursuer is content to find caution to repeat her share in case they were distrest.
The Lords repelled the defence, but prejudice to the executor to suspend on double poinding, calling the creditors.
It was further alleged for the defenders, That they must have allowance of sums bearing annualrent since 1641. It was answered, That no such sums can burden the relict's part, because, by the act of Parliament, the relict has no share of such sums if they were due to the defunct; and therefore, a pari, she cannot be burdened with such sums, being due by the defunct. The defenders answered, That the act of Parliament excludes relicts from such sums as bear annualrent, being due to their husbands, but doth not bear, that they shall be free of such sums due by their husbands; and statutes being stricti juris, the Lords cannot extend them beyond their sense to like cases. The pursuer answered, That the Lords always did, and might explain, and extend acts of Parliament to cases implied, and consequent, albeit not verbatim exprest; and as to this act of Parliament, it bears expressly, that all such bonds shall remain in their condition as they were before the act of Parliament 1641, quoad fiscum et relictam, before which the bonds bearing annualrent could not have burdened the relict; for the word, ‘such bonds,’ may not only be extended to bonds due to defuncts, but to bonds due by defuncts.
The Lords repelled also this defence, and found the relict's part not to be burdened with any bonds due by her husband bearing annualrent, unless they had become moveable by a charge, or that the term of payment of the annualrent was not come at the defunct's death.
Fol. Dic. v. 1. p. 386. Stair, v. 1. p. 576.*** Gosford reports the same case:
Margaret M'Kenzie, relict of Gilbert Robertson, did pursue her husband's executors for the third of his moveables, wherein the Lords found, that as bonds bearing annualrent due to the defunct, by the act of Parliament were heritable quoad relictam; so they found, that debts due by the defunct upon bonds bearing annualrent, could not diminish a third of the moveables, but that they should be first paid out of these bonds, which were only heritable quoad fiscum et relictam; and that they were not sufficient that they should affect the heir before the relict's third, because, as to payment of such debts, they found that the relict was in that same condition she was in before the act of Parliament.
