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By contract of marriage betwixt umquhile Thomas Young and Isobel Dickson, he was obliged to have ready in money L. 10,000, and to employ it on security and land for her liferent use, and all the moveables conquest during the marriage, are provided to the bairns of the marriage. The said Isobel and her second husband Robert Paterson pursue Thomas Young the only child of the first marriage, to fulfil the contract, in so far as was not fulfilled by contract in land, bearing to be in implement thereof pro tanto, and insisted for the superplus of the annualrent of L. 10,000 over and above the free rent of the land. The defender alleged, that the pursuer had intromitted with the moveables, which behoved to be employed in the first place, for making up the liferent, and so intus habuit. 2do, That seeing the pursuer liferented the defunct's whole estate, she ought to be liable to a modification to the defender, as apparent heir. The pursuer answered, that this employment being an heritable destination, it could not burden the moveables; for though a creditor might distress either heir or executor, yet the executor would have relief against the heir: And in this case, the defender being both heir and executor, the heritage must be first affected, so that the moveables must be free, and the pursuer will have the third of them, and cannot be liable in this process for any intromssion with them, much less for a modification to the heir. The defender replied, that the obligement to employ sums, has ever affected the moveables primo loco, and is a moveable debt quoad debitorem; neither can the pursuer claim a third, because the moveables acquired during the marriage, are provided to the heirs of the marriage; and as to the aliment to be modified to him, as apparent heir, he hath a process depending for it, which ought to be taken in incidenter, in this process.
The Lords, found the moveables to be liable primo loco; and found the relict to be excluded from the moveables conquest during the marriage, accounting these moveables only conquest, which exceeded the defunct's moveables before the marriage, and declared that they would modify an aliment, according as the condition of the estate should be proven. See Heritable and Moveable.
Fol. Dic. v. 1. p. 280. Stair, v. 2, p. 622.*** Fountainhall reports the same case:
Isobel Dickson and Robert Paterson her husband against Young for paying bygones of her liferent and to keep her free of public burdens. Alleged, Intus habet for bygones, by intromission with the moveables. Answered. By law she had a third. Replied, There was more debt than all the moveables, and so no third due. The Lords sustained the allegeance, and found she could have no third, till her own provision were once fulfilled; but deducted funeral charges, servants fees, &c. from her intromission; as also, found her jointure behoved to be free of public burdens, and by way of exception summarily admitted her son's action for aliment against her.
Fountainhall, MS.
*** The like was decided June 1729, Stewart against Hall, See Appendix.
