Scottish Court of Session Decisions

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.

Finlays
v.
Executors of Agnes Calder

Date: 24 February 1747
Case No. No 132.

A wife's funeral expenses must come out of her own fund. See the reverse of this No 129. supra. See the note below that case.

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A marriage being dissolved by the predecease of the wife, which entitled her executors to a third of the goods in communion, and the husband having died soon after, a question occurred between the husband's children of a former marriage and the executors of the wife, Whether her funeral expenses must come off the whole head of the moveables in communion, or only off her own legal third ? The decisions of the Court differing about this point, there was a necessity to recur to principles. The executors of the husband yielded, that, in the case of insolvency, humanity obliges a husband to bury his wife, and a wife to bury her husband; but the wife had here a fund of her own, viz. her legal third, sufficient to answer the expense of her funerals; and whether this fund ought to be so applied must depend on the following point, Whether the society betwixt husband and wife be dissolved by death, or whether it subsists till the interment of the person who dies first ? Supposing the latter, the funeral expenses of the predeceasing husband or wife must come off the whole head. But there does not appear from the nature of that society, nor from utility, any reason for prolonging this society beyond the time of other societies, which finish by death, unless the contrary be provided. Nor doth the law of Scotland prolong this society beyond life; for debts contracted by the husband between his wife's death and her funerals, do not affect the goods in communion, not even debts contracted for house-keeping. This reasoning is supported by the authority of the Roman law, l. 16. D. De Relig. “Æquissimum enim visum est veteribus, mulieres, quasi de patrimoniis suis, ita de dotibus, funerari.” And, l. 13. Cod. de Negot. gest. “Quod in uxorem tuam ægram erogasti, non a socero repetere, sed affectioni tuæ debes expendere. In funus sane ejus, si quid eo nomine quasi recepturus erogasti, patrem, ad quem dos rediit, jure convenis.” It was observed, That all nations, France, Holland, Germany, &c. where the communion of goods takes place, follow the same rule without one dissonant voice; so that we shall be singular if the practice be established among us of making the funeral expenses a burden upon the whole head. And, to conclude with a very considerable authority at home, Dirleton is of the same opinion, voce Funeral Charges. “If the funeral charges for burying the husband should affect the whole moveable estate, or the dead's part? Answer, It should affect the dead's part, seeing it is not a debt contracted during the communion.”

“Found, That the wife's funeral expenses must be defrayed out of her own fund.”

Rem. Dec. v. 2. No 80. p. 125. *** This case is reported by D. Falconer:

David Finlays of Bogside married Agnes Calder, relict of James Moor, portioner of Birdstone, who, during her viduity, had executed a testament, naming for her executors James Marshall of Watshod, James Calder portioner of Birdstone and William Graham portioner of Glasgow, which proved to be her latter will and testament.

The marriage dissolved by the predecease of the wife, at which time the husband had two sons of a former marriage, the youngest of whom was forisfamiliated.

Two questions arose between the husband and the wife's executor, 1st, Whethe division of moveables should be tripartite or bipartite, reckoning that there were no children, as the eldest was the father's presumptive heir ? 2dly, Whether the wife's funeral charges should affect the whole goods in communion, or only her own share ?

The Commissary of Glasgow found the division ought to be bipartite, and that the funeral charges behoved to come off the wife's share.

Pleaded for the husband, That a single child, though heir, has right to a legitim, as was found 10th November 1737, Justice against his Father's Disponees, voce Legitum.

Pleaded for the executors, This decision can only be a precedent where there is a single child; but where there are more, the whole bairns' part belongs to the youngest; and if they have got satisfaction for it, their renunciation ought not to benefit the heir, but the father, who has paid them the equivalent.

Pleaded on the second point for the husband, That his deceased wife having left effects of her own, the burden of interring her ought to be laid on them, l. 16. D: De religiosis, l. 13. Cod. De neg. gest.; Gordon against Inglis; No 126. p. 5924, Monteith against His Sister-in-law, No. 129. p. 5926.; Dicks against Massy, No 45. p. 5821.; Aitken against Guidlet, No 16. p. 2562.

Pleaded for the executors, By practice the funeral charges of the husband predeceasing are taken off the whole head, and therefore so ought those of the wife, Moncrief against Monypenny, No. 5. p. 3845.

Observed upon the report of a bill of advocation, That the laying the husband's, funeral charges upon the whole of the executry, was founded on a fiction that the funerator had contracted with him, and he having been administrator of the goods in communion, his contracts affected the whole; but the burier of the wife, by this fiction, being supposed to have contracted with him the debt could only affect her own interest.

The Lords remitted with instructions to find the division triparite, and that the funeral charges affected the wife's share. See Legitim.

Reporter, Tinwald. For the Executor, H. Home. Alt. Macdowal. D. Falconer, v. 1. No 173. p. 231.

*** See Kilkerran's report of this case, No 7. p. 3948.