James Auchinleck v. The Executors of Mr David Dinmuir
Date: 19 February 1697 Case No. No 12.
A wife's funeral expenses found privileged only on her own estate, not against her husband's creditors.
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James Auchinleck, apothecary in Edinburgh, pursues the Executors of Mr David Dinmuir advocate, for the medicaments furnished to him and his wife, (who died some months before himself,) and for the powders, oils, and searcloths for their bodies; and craved preference to all other creditors upon the account of this privileged debt. The Creditors confessed, that quoad the sumptus in morbum et funus of Mr David himself, he was preferable; but as to the funerary charges bestowed on his wife, he could claim no special preference, but only come in pari passu with the rest. Answered, That the debitum humanitatis obliged a man to bury his wife, and all the wise philosophers among the Grecians looked on it as a barbarous thing not to perform the officious rites of burial, even to enemies and strangers; and the Romans, a very prudent people, valued themselves much upon this, 1. 17. D. De rebus auctor. judic. possid. Answered, The officium humanitatis was not the question, but the preference; for if our servants die, or sicken in our family, we are obliged to call for help and advice, and to bury them; and yet none will say that will be a preferable debt on our executry. The Lords found the wife's funerary charges a privileged debt as well as the husband's, she having deceased before, him. Then a new question arose, seeing the wife's executors in Holland, (where she was born,) had carried a part of her moveables, whether they or the husband's executors ought to be discussed prima instantia, or if they ought to be liable, pro rata?
On a new hearing, the Lords altered, and found it but of the nature of a common debt, privileged on her own estate, but not against her husband's creditors.
Fol. Dic. v. 2. p. 176. Fountainhall, v. 1. p. 769.
