What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. II.
Bonds containing Substitutions. - Bonds bearing Annualrent. - Bonds having clauses of Infeftment. - Bonds assigned before Marriage, though not intimated. - Bond to the Widow's Fund. - Arrears of taxes due by a Minister.
Scott, and Thomas Fendar, now her Husband v. Parks, her Children
Date: 19 January 1693 Case No. No 17.
Found, tho' a charge of horning, on a bond bearing annualrent, made it moveable quoad the nearest of kin, and to fall under executry, yet it did not thereby become so moveable as to fall either to the relict or fisk.
Click here to view a pdf copy of this documet : PDF Copy
The Lords found, seeing there was no contract of marriage between her and her first husband, that his putting her name in the liferent of a bond of four thousand merks could not be ascribed in satisfaction of her third of the moveables pro tanto: But, as to the 2d point, found, though a charge of horning, on a bond bearing annualrent, made it moveable quoad the nearest of kin, and to fall under executry and confirmation, yet that it did not thereby become so moveable as to fall either to the relict or fisk; for a sum may be moveable quoad one effect, and yet not as to all other effects: And, as to the 3d, found the moveable debts could not be solely deducted off the relict's third, but out of the hail head of such debts as she could have a share of; and that she might be heard on her objections against the constitution of these debts, if they were either illegal or collusive, and not sufficiently proved.
1694. November 2—— Scott, and Thomas Fendar her spouse, against Parks her children, reclaiming against the Lords modification of their aliment at 100 merks each, and so mean that it could not maintain them now at schools, and at bed, board, and clothes, being now come to age; — The Lords were stumbled, 1mo, That it was the whole annualrent of their unliferented stock, and so, without encroaching on the principal, they could modify no more; 2do, That there was no contradictor here, the bairns being past pupillarity, and wanting curators; and so not being authorised, the Lords found they could not proceed by way of bill, but via ordinaria by an action; and so they neither obliged him to keep them, nor put them away, but to do as they thought fit, and give a larger allowance on their peril.
Fol. Dic. v. 1. p. 385. Fountainhall, v. 1. p. 547, & 641.
