Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. IX.

With what Modifications Bona Fide Consumption Saves from Repetition.

Lady Balmerino
v.
The Creditors

Date: 18 December 1746
Case No. No 55.

Creditors proceeding to confirm their debtor’s testament, his relict craved, that a sum taken out of his repositories, upon receipt by her, and bona fide expended on the maintenance of the family, should be omitted out of the inventory. Found that the sum must be confirmed; but that it should be allowed to the relict as bona fide expended.

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The Creditors of James Lord Balmerino being about to confirm his testament, application was made to the Commissaries by his relict, that there should be omitted out of the inventory a sum of L. 97: 5s. Sterling taken out of his repositories, and delivered to her upon receipt, to be accountable therefor, and bona fide expended by her in the maintenance of the family, from 5th January when my Lord died, till the next term, as by judgment of the Court of Session was allowed to the relict of Mr Hugh Murray Kynnynmound, who had also expended a sum lying by him, in the maintenance of the family.

The Commissaries refused this demand, and she presented a bill of advocation; to which it was answered, That the cases were not similar; for that in the one the money was in possession of Mrs Murray, before her husband's decease, and might be by her applied bona fide, equally with any provisions laid in for the family; but in this it was taken out of the defunct's repositories on receipt, to be accountable; so that there could be no bona fides; and if this claim were allowed, it would have the effect of making the maintenance of the family a preferable debt.

N.B. The interlocutor in Mrs Murray's case ‘found the aliment to the family to be a debt, though not a preferable debt upon the executry; but found, that money in Mrs Murray's hands, being bona fide applied to the maintenance of the family to the next term after Mr Murray's decease, she could not be bound to repeat the same. See Husband and Wife.

Some of the Court observed, That by the act of sederunt 25th February 1692, money ought only to be taken out to defray the expences of the funeral; and if the receipt had been taken in these terms, it would have destroyed the bona fides; so that if receipts were right taken afterwards, any determination in this case would not affect the interest of the creditors.

She likewise applied, That whereas my Lord's whole moveables were sold, part whereof she had bought, and given security for; and there was afterwards found a writing, whereby he disponed to her all the China, whether for the table or tea-table, as also some particulars of silver plate, pictures and jewels; therefore craving to have these things struck out of the inventory, and the security given by her for the price delivered up, as they belonged to herself; and that in so far as she had paid ready money for them, she might be allowed to retain out of the other effects bought by her; which demand was also refused, and the refusal complained of in the advocation.

Answered, That as this was a legacy in favour of my Lady, the creditors were preferable.

The Lords remitted, with instructions to this purpose, that the sum taken out of my Lord's repositories should be confirmed; but that it should be allowed to the executor as bona fide expended by my Lady for the maintenance of the family; and that the creditors should be found preferable on the subjects legated, which ought to be confirmed; but that they behoved to assign their debts to my Lady, to the extent of the value; to the end that she might thereon affect the estate; but so as she should not compete with them. See Executor.

Pet. J. Graham. Resp. Ferguson. Fol. Dic. v. 3. p. 96. D. Falconer, v. 2. No 148. p. 186.