Subject_1 HUSBAND and WIFE. Subject_2 DIVISION II.
Extent of the Husband's liability for the Wife's debts contracted before Marriage.
Subject_3 SECT. III.
The husband not liberated by the dissolution of the marriage if lucratus.
Spreul v. Stuart
Date: 27 January 1674 Case No. No 85.
Found in conformity with Burnet against Lepers, No 83. p. 5871.
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Mr John Spreul and Marshall his spouse, having obtained decreet against Dorroch as relict and executrix to her father, for her portion of the goods contained in the testament, and against Mr Robert Stuart, her second husband, for his interest, pursues now a transference of the decreet against
Stuart, as representing Mr Robert; who having alleged that his father, being only decerned as husband, and no execution against his estate thereupon during the marriage, that interest ceasing by the dissolution of the marriage, the decreet cannot be effectual against the husband, or any representing him; and it having been replied, That the husband was liable at least in quantum lucratus est,
The Lords sustained the reply, and ordained the pursuer to condescend.
Who condescended upon the whole inventory of the first husband's testament, which must be presumed to have been intromitted with by the relict and by her second husband, whom she married within the year, and lived with him many years; and as the wife, even after the marriage, continued obliged by the office of executry to pay the childrens portions, or to do diligence; so the second husband, under whose power she was, and who was obliged to concur with her, and to do diligence, was liable in the same manner.—It was answered, That as to a third part of the goods confirmed, it belonged to the relict herself, and did not exceed 5000 or 6000 merks, which was no more than a competent tocher, the husband being a gentleman of 2000 merks of rent, and was not lucrative but onerous, ad sustinenda onera matrimonii; and for any further intromission it was denied, and cannot be inferred by any presumption, but a positive probation; neither is the husband liable for diligence to execute the testament, but only for giving his concourse to his wife.
The Lords found, That whatsoever the wife intromitted with as executrix, behoved to be divided, and she or her husband could only retain a third part thereof for her own interest. They found also that it was presumed that the whole inventory was meddled with by the wife and husband, unless the defender did instruct in whose hands it was, or that it was exhausted, or diligence done; but did not determine that point, whether the husband would be liable for diligence with and for his wife, as to what should be proved not uplifted, but remaining in the debtor's hands.
