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Scottish Court of Session Decisions >>
Sheddan and Others v Gibson. [1802] Mor 11855 (15 May 1802)
URL: http://www.bailii.org/scot/cases/ScotCS/1802/Mor2811855-024.html Cite as:
[1802] Mor 11855
Widow's mournings are a privileged debt upon the funds of the deceased.
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Upon the death of George Haldane, Esq; of Gleneagles, mournings were furnished to his widow, daughters, and servants, by Archibald Gibson, merchant in Edinburgh, who, in a process of multiplepoinding brought by the executor-creditor of the deceased, claimed the payment of his account as a preferable debt. This claim was resisted by the personal creditors of Haldane, who contended, That Gibson had no right to rank even pari passu with onerous creditors.
The Lord Ordinary found, “That the widow's mournings are a preferable debt upon the funds of the defunct,” and sustained Gibson's claim to the extent of these furnishings.
The creditors reclaimed to the Court against this interlocutor, and
Pleaded; The law of Scotland protects creditors against all dilapidations of the debtor's estate after his death, and does not even allow an aliment to the widow to come into competition with onerous creditors, Bankton, B. 3. Tit. 8. The only exception to this general rule is, the expense of the funeral, and of the medicines furnished during the last illness of the deceased. The articles furnished by Gibson are not to be considered as furnishings for Mr Haldane's funeral. However suitable, therefore, these mournings may be, he is not a preferable creditor; Stair, B. 3. Tit. 8. § 72.; Erskine, B. 1. Tit. 6. § 41.; Hastie, November 10.1671, No 124. p. 5922.; Creditors of Scott, July 15. 1713, No 120. p. 5916.; Hall against Macaulay and Lindsay, January 19. 1753, No 67. p. 4854.; Neilson, November 21. 1776, No 375. p. 6165.
Answered; Funeral rites have always been considered as one of the duties of Christianity, and funeral charges as a preferable debt. This privilege is not confined to the expense of actual interment, but comprehends also those concomitant expenses which the custom of the country renders necessary or decent; and decorum requires that a widow should be provided with mournings suitable to her rank and station. Such furnishings are therefore really a part of the funeral expenses; F. F. 1. 11. tit. 7.; Voet, § 9. 14. h. t.; Van Lewan, B. 4. tit. 9. § 10.; Hall against Macaulay and Lindsay, January 19. 1753, No 67. p. 4854.; Gordon against Stewart and Others, February 19. 1743, No 372. p. 6161.
The Court unanimously adhered to the Lord Ordinary's interlocutor.
Lord Ordinary, Dunsinnan.For the Creditors, Montgomery.Agent, Ja. Gibson, W. S.Alt. W. Clerk.Agent, W Dallas, W. S.Clerk, Colquhoun.
Fac. Col. No 38. p. 79.
