Scottish Court of Session Decisions

Subject_1 IMPLIED WILL.

Parkhill
v.
Weir

1738, Nov. 3, 9.
Case No. No. 3.

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A question occurred, Whether Parkhill accepting from his wife in her contract of marriage a general disposition omnium bonorum, with a reserved faculty to the wife to dispose of 10,000 merks, the husband is liable to the creditors of the wife after her death, otherwise than in so far as he was lucratus upon deducting a competent tocher, or which is much the same, if he should have deduction of these debts out of the faculty; or on the other hand, if the husband is liable in valorem of the subjects to the whole debts as well as faculty, without regard whether he has a competent tocher or not? This last carried by a great majority, sed renit. Arniston, Strichen, and Murkle, who thought that such a general disposition did not at all make the husband liable for any debts, only it might be reduced on the act 1621, so far as exceeded a competent tocher, in the same way as if it were a special disposition, and, if it did not exceed a competent tocher, he was not at all liable after dissolution of the marriage; and if he paid them these, or if he paid heritable debts even during the marriage he might deduct them out of the faculty. But the Court thought, that as bona are counted only deductis debitis, the meaning of parties could be none other than that the wife was to give her husband all her estate with the burdens affecting it, or in other words all her free estate, but not the above reserved faculty, and that she could not be thought to mean to give away all her estate, and keep the debts a burden upon herself after giving away the fund of their payment, and that therefore though this was no passive title against the husband, which cannot be while the original debtor is alive, and does not make the husband liable universally for his wife's debts, yet he must be liable in valorem of the subjects conveyed and his intromissions with them, both to the wife's debts and reserved faculty, whether any tocher should remain to him or not, since he is presumed to have taken his hazard of that; whereas where a disposition is special of particular subjects there is no place for any deduction, and however prior creditors might reduce it quoad excessum, yet the husband or his heirs would have relief against the wife, even her alimentary provision if she survived, or out of her reserved faculty, notwithstanding that the husband should still have a competent to tocher remaining. And Arniston himself owned, that if the subjects here reconveyed exceeded a competent tocher, Parkhill would be liable for the debts without relief out of the reserved faculty. The other point anent the 3000 merks was remitted to the Ordinary to hear the objections against Parkhill's confirmation; but all agreed that if it was sustained, the concourse or compensation must operate from its date.