A relict, pursued as executrix of her husband, alleged she was creditrix for her provision in her contract of marriage Certain obligations on her part were opposed. She was allowed to make oath that she had satisfied her obligation. The marriage had subsisted nine years.
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A relict being pursued, as executor to her husband, for a debt, alleged, she was only executor creditor for payment of 2400 merks, provided to her by contract of marriage. It was answered, That the debt was satisfied, at least compensed; in so far as she was obliged, by the same contract, to give the defunct goods and gear to the value of 2400 merks, which she declared she had in penny and penny worth, and was worth the same; (which are the words) and obliged herself to put him in possession thereof.
The Lords found, that the husband having lived only nine years after the marriage, because of the presumption that he had been silent all the time, and had not craved, nor declared the said sum to be resting, it was therefore to be thought, that he had gotten the goods, and that the obligement was satisfied; and so they thought, that there being so much confidence betwixt husband and wife, it were hard to put her to a full probation; they therefore ordained her to give her oath of calumny, that she had satisfied the obligement, and to adduce some probation and adminicles to prove aliqualiter.
In the same cause, it being further alleged, that the husband had paid for his wife as much debt as would exhaust that which she had brought with her, and so that she had not paid it effectually,
The Lords found, that if she had put him in possession of the goods conform to the obligement, and that they were her own, at least that she had a right or coloured title thereto, that she was neither liable to warrant, either as to the eviction of the goods, or from any debts, seeing the husband taketh his hazard and in law is liable to the payment of the same.
Some of the Lords thought, that albeit the husband be liable to the creditors of the wife, whether she perform her part of the contract of marriage or not, or whether he got any thing effectually with her or not; yet it were very fit to consider the quality of the debts of the wife, alleged paid by the husband; for, if they were such as the wife could not but know, when she contracted goods of the value foresaid, and yet she did conceal them, it. were a fraud and cheat to oblige herself to be worth and give to her husband goods extending to 2400 merks, when she knew she was not worth a groat, her debts being so great as to evict the same.
They considered, that, in this case, she did not dispone any goods in particular, but was obliged to a generality, viz. that she was worth goods of that value; and she cannot be said to be worth in goods the said sum, her debt being equivalent; seeing bona are understood debitis deductis.
Act. ———.Alt. Mr Roger Hog.Clerk, Mr Thomas Hay.
Dirleton, No 182. p. 73.*** Gosford reports the same case:
John Law, as assignee to a bond granted by George Dudgeon, first husband to the said Helen Mure, pursues her as vicious intromissatrix with her husband's moveables. It was alleged, Absolvitor, because the defender was confirmed executrix creditrix to her husband by contract of marriage, whereby he was obliged to pay 24,000 merks at the first term after his decease, in case she survived him, which exhausted the whole inventory of his goods. It was replied, That obligement in her contract being relative to the defender's obligement, whereby she did affirm, that she was worth, in penny and pennyworth, the foresaid sum, and obliged herself to enter her future husband, to the possession thereof; so that unless she can instruct, by a discharge from her husband, that she did perform her part, she can never herself be executrix creditrix, especially seeing, she being a widow the time of her second contract, any goods she had did belong to the bairns of the first marriage, who accordingly had evicted the same by a decreet. It was duplied, That the contract of marriage being made in anno 1641, and her husband having lived many years thereafter with her, and never intented action, nor quarrelled the contract for want of the goods, any provision made in her favours cannot be evacuated upon that pretence, that she wants a discharge from her husband, which not being ordinary or necessary, is never sustained to prejudge a wife of her liferent, even albeit a husband should be distressed for his wife's debt, contracted before the marriage, which should exceed any tocher received by him.——The Lords did find, that there is a great difference where a woman, in a contract, is obliged to pay a sum of money, and to enter her husband to the possession of particular goods and gear, extending to a value in money; for, in the first case, the parties having lived long together, albeit the wife had gotten no discharge, it was not sufficient to prejudge her of her liferent; but, in this case, she affirming that she had goods and gear to a certain value, and they being condescended on, it being offered to be proved that they were evicted, and did belong to the children of the first marriage; they found, that she ought to condescend and prove that she had real goods in her own possession, and that the allegeance of eviction of the same goods was relevant to take away the title of executrix creditrix, whereby a lawful creditor of her husband was prejudged, and so she could only have a right to a half, or a third, of the free gear deductis debitis.
