What subjects fall sub communione bonorum et debitorum.
Subject_3 SECT. III.
Heritable debts due by Husband or Wife.
Isobell Moncrieff and her Husband, v. Katharin Monypenny
Date: 27 January 1713 Case No. No 26.
Bonds bearing annualrent affect the dead's part only, if sufficient to satisfy them.
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In the process depending betwixt Isobell Moncrieff and the Lady Sauchop, the defender insisted for one half of all the defunct's moveables, (there being no children of the marriage) free of debts bearing annualrent, which she contended must affect the dead's part only, and could not diminish her legal share; because bonds bearing annualrent being heritable quoad relictam, and so not falling under the computation of moveables whereof she hath a share, such debts of her husband cannot burden her share of the moveables, and if the contrary should obtain, the interest of relicts might be entirely cut off.
Answered for the pursuer, Seeing the husband during the marriage hath not only the administration, but is dominus actu, and may dispose of the same even gratuitously, and the wife hath only right and interest habitu, which exit in actum at the dissolution of the marriage, her interest can reach no further than to the free moveables after payment of the husband's debts affecting the executry; nam id solum nostrum, quod debitis deductis nostrum est. Now bonds bearing annualrent are proper debts upon the whole executry.
The Lords found, That moveable bonds bearing annualrent, whereof the term of payment was past before the husband's decease, cannot affect the relict's share of the free gear, but affect the dead's part only in this case where the defunct had no children. Vide 20th June 1713, inter eosdem, No 5. p. 3945. See Quod Potuit Non Fecit.—Recompence.—Testament.
