Scottish Court of Session Decisions

Subject_Diligence—Husband and Wife.—

A husband, by antenuptial contract, bound himself to secure 1500 for the liferent use of his wife, if surviving him, and his brother bound himself by a relative bond, that, if the husband failed to implement this provision, be should pay the legal interest to the widow, beginning the first payment at the first term after the husband's death: and he consented to registration for execution: the husband died insolvent, and without having made the provision— held competent for the widow to register the bond of the brother, and give him a charge for the first term's interest, as soon as it fell due, without awaiting full discussion of the husband's estate.

By antenuptial contract, between the late John H. Wishart, surgeon in Edinburgh, and Miss Louisa Melville Wilson, Mr Wishart bound himself, inter alia, “to provide and secure the sum of £150 sterling, in good and sufficient security, heritable or moveable, or in the purchase of lands or houses, and to take the rights and titles thereof to himself and the said Louisa Melville Wilson in conjunct fee and liferent use allenarly, in case she shall happen to survive him, and to the children to be procreated betwixt them; whom failing, to himself, and his heirs and assignees whomsoever in fee, and that so soon as he or they shall be called upon to do so, by the persons at whose instance action and execution for implement of the provisions made in favour of the wife and children of the marriage, by these presents, are hereinafter appointed to pass.” On the other hand, Mrs Wishart assigned to trustees (one of whom was the suspender, the brother of Mr Wishart) her fortune for certain purposes, and with a power, if they saw fit, to lend it to Mr Wishart on proper security.

There were also certain parties named, at whose instance execution of the provisions in the marriage-contract were to be enforced.

Of the same date with the contract of marriage, Archibald Wishart granted the following obligation in a separate deed:— “I do hereby, in the event of the said John Henry Wishart's failing to implement the provision above mentioned, by providing and securing the foresaid sum of £1500 sterling, in the manner provided by the said contract of marriage allenarly, and no other ways, bind and oblige myself, my heirs, executors, and successors whatsoever, to make payment to said Louisa Melville Wilson, in case she shall happen to survive the said John Henry Wishart, of the legal interest of the foresaid sum of £1500 sterling, beginning the first payment of said interest at the first term of Whitsunday or Martinmas that shall happen after his death for the half-year preceding, and so forth half-yearly thereafter during all the days of her life.”

There was also an obligation to pay the principal sum of £1500 to the children of the marriage, at the first term after the death of the survivor of J. H. Wishart and his wife. The bond contained this clause:—“And I oblige myself, and my foresaids, to grant security for the payment of the foresaid sums of principal and interest, to the satisfaction of the persons at whose instance action and execution is, by the foresaid contract of marriage, stipulated to pass for implement of the provisions in favour of the said Louisa Melville Wilson and children of the marriage, and that so soon after the death of the said John Henry Wishart as they may require us to do so.” And he “consented to the registration hereof in the books of Council and Session, or any other Judge's books competent, that letters of horning, on a charge of six days, and all other execution necessary, may pass on a decree to be interponed hereto in form, as effeirs.”

John H. Wishart died on, 9th June, 1834, and, in December following,

Mrs Wishart recorded Archibald Wishart's bond, after which she gave him a charge of horning for payment of a term's interest on the sum of £1500, as having fallen due at Martinmas.

Wishart presented a bill of suspension, on caution, and pleaded, 1st, That the diligence was unwarrantable, as it could only proceed at the instance of the parties specified in the marriage-contract. 2d, That there ought first to be full discussion of the estate of the principal debtor, so as to ascertain whether the cautioner was liable at all, and to what extent. And, 3d, That, but for the negligence of the marriage trustees, the sum of £1500, of John H. Wishart's own funds, could have been invested during his life-time, and ought to have been so.

Mrs Wishart answered, 1. That the parties named for enforcing implement of the provisions of the marriage-contract were so named, chiefly with a view to execution against the husband, if necessary. But the present charge was given after the dissolution of the marriage, on the separate bond of the suspender, binding him to make payment of an alimentary provision to the charger, and she was entitled to compel implement at her own instance. 2. The suspender did not allege that John II. Wishart had made implement of the obligation of investing £1500; on the contrary, he complained that this had been omitted. Neither did he allege that his brother, J. H. Wishart, had died solvent. In these circumstances, and as the bond had provided for his paying interest at the first term after her husband's death, and the provision was of an alimentary nature, she could not be compelled to abide full legal discussion of J. H. Wishart's estate and representatives before insisting-for the termly interest due to her. And, 3. As the suspender was one of the trustees, he could not complain of their remissness in not causing J. H. Wishart to invest the £1500. But separately, the charger was an onerous creditor of the suspender under his bond, and was in no way affected by the remissness of the marriage trustees, even had such remissness existed.

The Lord Ordinary passed the bill.

The charger reclaimed; and