Subject_1 FIAR, ABSOLUTE, LIMITED. Subject_2 SECT. VII.
Husband's power of disposal over Tocher provided in a Contract of Marriage.
Sir John Hall of Dunglass, v. Elizabeth Lorimer, Relict of John Sandilands
Date: 22 November 1692 Case No. No 48.
The obligation on a husband to employ the tocher for the wife's liferent use, was not mentioned in that part of the contract of marriage, by which the tocher was assigned to him, but was only personal. His creditors, who had attached the subject, were found preferable.
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She contended the sum craved to be made furthcoming by Sir John, as a creditor to her husband, behoved primo loco to stand affected for her liferent-use, as a part of her jointure of 1200 merks yearly, to which she was provided; because, by her contract of marriage, her husband was obliged to lay 10,000 merks of his own money to the 10,000 merks he received with her in tocher, making up 20,000 merks, and to secure it to her in liferent; and by the destination she had right to it.—Answered, That the husband's obligement to employ the tocher for her liferent use was but personal, and, notwithstanding thereof, he might have assigned it to whom he pleased; and that her assignation of the tocher to him was simple and absolute, and nowise clogged with the burden of her liferent, which only would have made it a correspective obligation; whereas here the assigning the tocher was not in contemplation of the jointure, but of the marriage.—Replied, That the obligements were all in eodem corpore et contextu of the writ; and though it might hinder commerce, to make it hypothecated during the husband's life, who might freely uplift and trade with it, yet the marriage being now dissolved by his death, so that it can answer no end of trading, and being yet extant unuplifted, she ought to be preferred.—— The Lords, by a plurality, found the obligement not being in the assignation, it was but personal; and so preferred Sir John, the husband's creditor, on his diligence.
Fol. Dic. v. 1. p. 310. Fountainhall, v. 1. p. 520.
