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Scottish Court of Session Decisions >>
A. v B. [1708] Mor 5927 (19 June 1708)
URL: http://www.bailii.org/scot/cases/ScotCS/1708/Mor1405927-131.html Cite as:
[1708] Mor 5927
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION III.
Mutual Duties betwixt Husband and Wife.
Subject_3 SECT. VI.
Mournings. - Funeral Expenses. - Expense of a Posthumous Child.
A v. B
Date: 19 June 1708 Case No. No 131.
The relict's part must bear a share of the husband's funeral expenses, as well as the dead's part.
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In a process between the relict and children of the following points came to be advised, viz. 1mo, The executors confirmed craved allowance and deduction for the moveable heirship, as the best of each species of the plenishing which the heir would have right to, but had not yet claimed. Answered, There could be no separation on that account, because non constat what he could elect, and therefore, you must pay in to me the whole. The Lords found the whole was to be accounted for, but ordained the receiver to find caution to warrant them against the heir, when he appears, to make his share forthcoming to him. 2do, Deduction being craved for the funeral expense, the relict objected, That could never affect nor diminish any part of her share of the moveables, because the communion of goods can be burdened with no debts, but what were contracted during the standing of the society; but ita est the funeral charges is a debt arising and existing after the dissolution of the marriage, and so can only affect the dead's part, and not the relict; and that my Lord Dirleton, who was long a commissary, and much versed in consistorial cases, is of this opinion, voce Funeral Charges. Answered, Burying her husband is one of the most privileged debts, and one of the laws of nature, et debitum humanitatis, ne cadavera maneant insepulta; and it is as reasonable that the relict bear a share of the burden as his children; and whatever might be the practice when Sir John Nisbet was commissary, now more than 40 years ago, yet the practice since hath currently gone in the contrary.The Lords found the relict's part behoved to bear a share of the funerals, as well as the dead's part belonging to the nearest of kin. See Jus Tertii.
Fol. Dic. v 1. p. 396. Fountainhall, v. 2. p. 444.
*** In like manner was decided the case Moncrieff against Monypenny, No 5. p. 3945.
