Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IV.

The Husband's powers with regard to the management of the common stock, and of the Children.

Elizabeth Anderson
v.
Andrew Cunninghame

Date: 7 December 1665
Case No. No 139.

A husband confirmed his wife's testament, and made faith on the inventory. By this he was not excluded from disappointing the wife's legatees, by adding another debt forgotten, if not dolose forgotten.

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Andrew Cunninghame's wife having left a legacy to Elizabeth Anderson, it was alleged by the husband, that his wife's share of the moveables was exhausted. It was answered, That he having confirmed his wife's testament, and given up the debts due by him therein, and made faith thereon, he cannot now be admitted to adduce any other debts, especially being so recent before the testament, within three or four years. It was answered, That he had only made faith upon the inventory of the goods belonging to him, but not of the debts due by him, which were only given up to abate the quota; and albeit it may be presumed that he knew and remembered his own debt, yet præsumptio cedit veritati, seeing the creditors now produce their bond instructing the debt, and crave preference.

Which the Lords found relevant.

1666. June 9.—This cause betwixt Elizabeth Anderson and George Cunninghame, anent a legacy left by the said George's wife to the said Elizabeth Anderson, being debated the 7th December last, the Lords then found, that George, by confirming his wife's testament, in giving up his debts, to exhaust the free gear, and abate the legacy, did not hinder himself to adduce further debt for a further abatement; but now, it being further alleged, That immediately before the confirmation, the bond he would now add was registrate, and he charged therewith, he could not be ignorant thereof at the time of the confirmation.

The Lords altered their interlocutor, and found that having scienter omitted that debt, he could not bring it in to the legatar's prejudice.

This was stopped by bill the next day.

Stair, v. 1. p. 323. & 374. *** Newbyth reports the same case:

1665. December 7.—Umquhile Agnes Harvie, spouse to George Cunningham, by her latter-will and testament in anno 1645, did leave several legacies therein contained; which testament being confirmed by her husband, who finding that the debt did exceed the free gear, intented a reduction and declarator, craving that the legacies may be reduced and he declared free thereof. It was alleged for the legatars, That they ought to be assoilzied from the reason of reduction; because the said George having confirmed his wife's testament, notwithstanding of the debts given up at the time, there was considerable free gear remaining, so that having made faith when he gave up the inventory, he ought not now to be heard to quarrel the same upon pretext of his other debts, which he could not but know the time of the confirmation. Whereunto it was replied, That seeing the pursuer instantly proves by writ that he was debtor, the time of the confirmation, in greater sums than the inventory confirmed, it is clear that no legacy can be due; especially seeing, although the said debt had not been given up, yet legatars are obliged to find caution in case of emergency of debts, and compearance was made for James Cunningham of Bonnington the creditor. The Lords sustained the reason of reduction, and found that the husband giving up of the inventory, might yet give up any debts owing by him to any of his creditors the time of the making the testament, whereof he ought to have allowance for exhausting the inventory.

1666 June 9.—Agnes Harvie deceasing in December 1645, George Cunningham, her husband, being nominate her executor, gives up as dominus bonorum the inventory of his wife's testament in November 1648, and gives up all the debts owing by him, so that there rested of free gear L. 1800; thereafter, John Hamilton, one of the legatars, recovers decreet in foro against the husband for a legacy left to him by the defunct Agnes Harvie. The said George Cunningham alleging, That he was resting to James Cunningham of Bonnington 2000 merks, which he paid in December 1648; after the confirmation of his wife's testament, pursues now a reduction of the said testament to the prejudice of the legatars, upon this ground, that there being a debt due to Bonnington by himself, which he omitted to give up the time of the confirmation, and whilk will exhaust the inventory. There would be no free gear, and consequently no legacy. It was alleged for the legatars, That he having given up the testament himself in anno 1648, and all the debts owing by him, he cannot now be heard, after so long a time to add any more to the prejudice of the legatary. To this it was answered, That he needed not give up any of his debts at all, and that he knew not of Bonnington's debt the time of giving up the inventory; and that as the legatar is, obliged to find cautionem mutianam in case of emergency of debts, so they can have no legacies till all the debts be paid; and compearance was made for Bonnington the creditor, who craved preference. It was duplied, That the husband had given up the inventory ex certa scientia, and that he could not be ignorant of the debt owing to Bonnington, being his own deed, and if he omit it, it was done dolose to conceal his condition from the world; and that cautio mutiana is not taken in this case, where the husband has the privilege of giving up of the debts owing by him when he confirms his wife's testament; and as to Bonnington's compearance, he has no interest, because the debt is already paid him. The Lords would not sustain the reason of reduction; but found, that in regard the husband had omitted the giving up of the debt owing to Bonnington the time of the confirmation, it could not now be sustained for exhausting of the inventory to the prejudice of the legatar, and that in regard of his presumptive knowledge of the same, which he had dolose omitted in this same action. It was alleged, That Bonnington's debt being an heritable debt, it could not exhaust her part of the moveables to the prejudice of her legatars; because, in justice she falling no part of the bond bearing annualrent, she ought not to be prejudged by any bond due to her husband bearing annualrent; so that albeit it had been given up, it could not have exhausted that part which belonged to the wife; but this was not decided.

1666. June 14.—In the same process, the Lords would not allow George Cunningham to depone upon his ignorance of the foresaid debt of 2000 merks owing by him, but found that he might give in a condescendence of the probable causes of his ignorance, which they would take to consideration.

Newbyth, MS. p. 44. & 61.

*** See Gilmour's report of this case, No 21. p. 5639.