Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. V.
Personal Faculties and Privileges, whether they may be founded on directly by Creditors.
Trustees of Alexander Wedderburn v. Mrs Margaret Colville
Date: 29 January 1789 Case No. No 105.
It is optional to a substitute heir of entail, to avail himself of an irritancy incurred by the heir in possession, so that it is not an adjudgeable faculty, or such as devolves any right to the husband of a female substitute, under the jus mariti.
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Mrs Colville, a married woman, prevailed in a declarator of irritancy of the right of an heir of entail in possession. During the dependence of that process, which, under her mandate, was carried on by certain creditors of her father's, they entered into an agreement with herself and her husband, by which she engaged to pay to those creditors two-thirds of the rents of the estate, during her incumbency; she, on the other hand, being to enjoy the remaining third, and her husband's jus mariti being excluded.
The creditors of the husband having arrested these rents as falling under the jus mariti, and raised a process of forthcoming, they
Pleaded, By means of the right arising to Mrs Colville, through the irritancy of the entail being, incurred, an estate, the rents of Which were to belong to her husband during their joint lives, devolved on her. Of this liferent right it was not in her power to disappoint him; for he alone, even without her consent, would have been entitled to institute the declarator. This power or faculty then was a competent subject for his creditors to adjudge; Stair, b. 3. tit. 2. § 16; Ersk. b. 2. tit. 12. §6; Bankt. b. 3. tit. 1. § 35. 38.: Stewart's Answer to Dirleton, voce Adjudication; and of that jus quæsitum, the agreement in question cannot deprive them. Nor is it of any importance, that the irritancy was not then actually declared; for the same jus quæsitum arises in a contingent right of property as in one already vested.
Answered, Irritancies, such as this, are of a highly penal nature; and there is no authority for asserting that an heir is in any respect bound, contrary to his will, to avail himself of the right which thence results to him. The defender then could not have been compelled, either by her husband or by creditors, to institute the declaratory action. It was entirely in her option, whether to exercise her right, or in what manner; and consequently in this matter she is not to be controuled, although the effect of the present demand were not, as it is, to deprive her of bread. Besides it may be said, that the creditors, by bearing the expense of the process, have purchased the right which they acquired.
The Lord Ordinary reported the cause, when the Court seemed to be moved by the first part of the above argument for the defender, and
“Found the arrestments used by Lord Loughborough, and the other trustees of Mr Wedderburn of St Germains, ineffectual for attaching the rents in medio; and preferred the factor for behoof of Mrs Margaret Colville, her husband, and creditors thereupon.”
Lord Reporter, Stonefield.Act. Wight, G. Ferguson.Alt. Maconochie.Clerk, Gordon.
Fol. Dic. v. 4. p. 76. Fac. Col. No 56. p. 100.
