Scottish Court of Session Decisions

Subject_1 PRIVILEGED DEBT.

The Creditors of Alexander Lindsay
v.
His Relict

Date: 23 February 1714
Case No. No 14.

The aliment of the family till the first term after defunct's death, found to have no preference to other creditors.

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The Creditors and Relict of Alexander Lindsay having moved edicts for obtaining themselves confirmed executors creditors to the defunct, the Commissaries conjoined the Relict and other Creditors in the office, but with preference to the Relict for a certain sum for the aliment of herself and family, till the first term after the defunct's death.

The Creditors have raised an advocation, alleged that there was no ground for preferring the aliment of the family to other debts, because there is neither law nor decision to authorise it, and the Viscount of Stair, enumerating priviledged debt, makes no mention of the aliment of the family.

It was answered; It has been the uniform practice of all Commissaries, and especially of the Commissaries of Edinburgh who pronounced this interlocutor, to reckon the aliment of the family amongst preferable debts, and there is great regard to their practice in their own peculiar business; and it is also most reasonable, because servants' fees being a preferable debt, their entertainment in the family till the next term is as necessary and more than their fees; for being otherwise unprovided, they cannot be dismissed betwixt terms, and the Relict her necessary servants are a part of the family.

It was replied; There being no law for this preference, the decision of the Lords is not to be regulated by the practice of the Commissaries, who universally gave preference to relicts for all the provisions in their contracts as well as the aliment of the family; nevertheless, the Lords, by uniform decisions for many years past, have found that the relicts have preference, and now at last the Commissioners conform themselves to that rule, as they ought also in that of the aliment of the family, whereof the preference had its rise from the privilege they were in use to give to all the provisions in the contract; for by the same reason that the wife's liferent was preferable, her entertainment to the first term's payment of her jointure was also preferable; and, e contra, as her liferent is not preferable, so neither is the aliment of the family, whereof the wife is the head and has the principal direction.

“The Lords found the aliment of the family had no preference.”

Fol. Dic. v. 2. p. 176. Darlymple, No 102. p. 143. *** Forbes reports this case:

The deceased Alexander Lindsay, in his contract of marriage with Janet Knox his second wife, provided to her the equal half of his household plenishing which should happen to pertain to him the time of his decease, without the burden of debt, and the other half of the said plenishing to his children of the first marriage, if he should not otherwise dispose thereof in his lifetime. Mr William Forbes moved an edict before the Commissaries of Edinburgh, for decerning and confirming him executor qua creditor to the said Alexander Lindsay, and several other creditors craved to be decerned in like manner, and conjoined in the office. The Commissaries admitted Janet Knox, the Relict, to be decerned and confirmed as executrix dative with the other creditors, with preference to her for the half of the household plenishing by virtue of her contract of marriage, and also for payment of L. 200 for her aliment from her husband's death, (which happened on the 1st of December 1712), till Whitsunday thereafter. Mr Forbes and the other creditors raised advocation of the cause, upon grounds, of iniquity committed by the Commissaries; 1mo, in finding the Relict preferable to other creditors as to her aliment; because de jure communi, all debts are alike, or brought in conform to their diligence, except where, by statute or established custom, that is auctoritate rerum perpetuo similiter judicatarum in a sovereign court, a special privilege is indulged, and privileges debording from the common rule of law, being always strictly interpreted, are never extended de casu in casum. Now, all debts privileged by law or custom, are only four, viz. medicaments afforded to the defunct on his death-bed, his funeral charges, a term's house mail, and servants' fees for a year or term, as they were fied; Stair, lib. 3. tit. 8. § 64. 72. lib. 4. tit. 35. § 3. But there is no vestige of any preference ever given to the aliment of the defunct's relict and family. Besides, there are special reasons for indulging a privilege to the other debts aforesaid, none of which can be pleaded in favours of the aliment. Medicaments on deathbed, and funeral expenses, are necessarily privileged from the common obligation of humanity; the one, that the dead may not be unburied, and the other, that a sick man, who is not in case to do for himself, may not want the proper remedies for his recovery. House-mails are preferred upon account of the landlord's hypothec. Servants' fees for the current year or term, have a privilege, partly, because, generally speaking, these are but a small matter, and indigent servants if deprived thereof, would be rendered unserviceable, and want present subsistence; partly for that, if it were otherwise, servants would desert their masters on their deathbed, and in their extremity when they stood most in need. Whereas, a privileged aliment to a relict till the first term after her husband's death, can be supported by no reason; especially considering, that wives are commonly provided with liberal jointures; as it is in this case, where Janet Knox is provided to a liferent of 15,000 merks. 2do, The Commissaries committed iniquity, in giving preference to the relict for the half of the household plenishing; because the provision of the household plenishing being only a destination and a general disposition of what the husband should have undisposed of at the time of his decease, without so much as an instrument of possession and symbolical delivery, that did not divest him of the property; so that, notwithstanding thereof, the goods might have been alienated by him, or arrested and poinded by his creditors during his life, and remained at his decease in bonis ejus. See the cases of Procurators Fiscal of Edinburgh and St Andrews, in 1665, voce Succession; 15th June 1624, Strachan contra Scot, voce Process; and 19th June 1711, Liddel contra Davidson, No 253. p. 11588, voce Presumption. The act of sederunt also brings in all creditors equal in diligence pari passu.

Answered for Janet Knox; 1mo, The Commisaries of Edinburgh are in constant use to give a preference to a relict for her aliment, and the stylus fori consistorialis in matters under their inspection, comes to be a rule when backed with long custom. And in the case of a settled custom, we need not much enquire into the reason. 2do, Provisions in contracts of marriage being onerous, and in effect alienations, there was no necessity of a formal delivery where the husband's possession was the wife's possession; she, at her husband's death had the absolute and preferable right to the half of the plenishing free of debt; so that she comes not in as a creditor by the clause, but as proprietor: Though in such general dispositions the Commissaries use to confirm the subject, which is all that the decisions noticed by the other creditors import.

The Lord found the Relict's alimenting the family till the next term, is not a privileged debt to give her preference in the confirmation of her husband's moveables, in prejudice of the defunct's other creditors.

The Lords delayed to advise the other point, concerning the household plening, till June. (Infra.)

Forbes, MS. p. 29.