Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Francis Bruce v. Mary Smith and Thomas Aird
Date: 10 June 1696
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Lauderdale reported Francis Bruce against Mary Smith and Thomas Aird, now her husband. He, as executor decerned, pursues her for delivery of a 1000 merks' bond, that he may confirm it as brother to her first husband, to whom she had disponed that bond in her contract of marriage.
Alleged,—She could not exhibit; because, by a clause in the contract, in case there were no children of the marriage, and she survived, the 2000 merks therein provided was to divide equally betwixt his heirs and her; and so she had jus retentionis in her own hand for implement of that obligement.
Answered,—He, being executor, was only liable to fulfil, and, having found caution, it ought to be delivered to him; and, if she had any claim, the creditor's action lay solely against him, whom she must pursue. 2do. The most she could plead were to retain the half, seeing the whole subject divided between his heirs and her, and so every bond.
Replied,—She opponed the clause of the contract, and frustra petis quod mox est restituendum; and why should unnecessary processes and charges be multiplied, seeing tutius est incumbere rei quam personœ, and her own 1000 merks was declared to return to her in case of no bairns, and her surviving; and his nudum officium as executor could not entitle him to uplift it from her.
The Lords found she had right to retain the whole. But it being moved, That, in case the creditors distressed the executor, and they should be preferred to the relict, and the rest of the estate were not able to satisfy them, that she might find caution to relieve the executor in that event;—the Lords found she was not obliged, seeing she got it not as a creditor to her husband, but as a substitute fiar, failing of bairns of the marriage.
In the same process, he pursuing for the moveables, her defence was quoad the half,—I have right by my contract, bearing my acceptation of the jointure in full of all, except a half of the household-plenishing, to which it is declared she shall have right. The Lords thought this clause would not debar creditors, if they were in campo, from affecting that half; and therefore ordained her to find caution to relieve the executor at her first husband's creditors' hands, if he happen to be distressed, to be liable proportionally with the rest of the moveable estate, as accords of the law; reserving her defences in any such process when it shall be intented: For, when the parties design that the relict should have a share in the moveables, not subject to the husband's debt, it is, by an express clause in the contract, provided to be free; and, however this may be quarrelled by the creditors, as in defraud, (unless they be disponed per verba de prœsenti,) yet it will always operate so much as to force the husband's representatives to make it up to her.
