Though deeds, done in defraud of creditors, against the act 1621, regularly need reduction, yet in a personal right, the matter depending before the Lords, and the parties poor, such a deed was found simply null.
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By contract of marriage betwixt umquhile Thomas Sime and Marion Brown, John Flowan, Marion's master, is obliged to pay 300 merks of tocher, and Thomas Sime is obliged to employ the said 300 merks, and 200 merks further for the said Marion, her liferent use. The said Thomas having two daughters, Isobel and Margaret Simes, he lends a sum of 400 merks to Thomas Brown, and takes the bond on these terms, to be paid to him and the said Marion Brown, the longest liver of them two in liferent, and after their decease, to Margaret and Isobel Simes. The said Isobel and Margaret having pursued the said Marion before the Commissaries, for delivery of this bond, as belonging to them after their father's death, the Commissaries assoilzied the said Marion from delivery of the bond, and found it did belong to the said Marion herself, not only as to the annualrent, but as to the stock, because her husband having no other means but this bond, and not having fulfilled her contract, she had confirmed herself executrix creditrix in this sum, and behoved to exclude her husband's two daughters of a former marriage, who were provided, and forisfamiliate before. Of this absolvitor the daughters raised a reduction on this reason, That this sum could not be confirmed, not being in bonis defuncti, the father being but liferenter, and the daughters fiars, and though they were but as heirs substitute, they exclude executors, and need no confirmation; 2dly, The husband being but obliged to employ this tocher, and 200 merks more, the pursuer must instruct that the tocher was paid; 3dly, The wife intromitted with as much of her husband's goods as would satisfy her provision.—It was answered, That the wife not being obliged for her tocher, but another party who was solvendo, and neither being obliged, nor in capacity to pursue, therefore could not now, after so long a time, be put to prove that the tocher was paid; and for her intromission she had confirmed and made faith, and the pursuers might take a dative ad omissa, if they pleased, but could not, hoc ordine, reduce or stop her decreet upon compearance.
The Lords found, That albeit in form the bond should have been reduced, as being done in fraudem of the wife, as being a creditor, and thereafter confirmed; yet now the matter being before the Lords, and the parties poor, they found the husband's substitution of two provided daughters by a former marriage null, as to the wife's provision, by the act of Parliament 1621, without necessity of reduction, the matter being but a personal right; and found the wife not obliged to instruct the tocher paid; and therefore assoilzied from the reduction, but prejudice to the pursuers to confirm, a dative ad omissa.
