Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IV.

The Husband's powers with regard to the management of the common stock, and of the Children.

Jean Donaldson
v.
James Hay

Date: 17 June 1783
Case No. No 148.

Found, that the sums due to the child of a minister, under the act establishing a fund for their widows and children, tho' declared by the act not to be arrestable, do yet fall under the jus mariti, and may be attachable for debts of the husband of such child.

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Mr Donaldson, minister at Glammis, died in September 1779, leaving one daughter, who was married to Mr Hay.

Mr Hay died in March 1781; when a question arose, whether the sums due to his wife, as the child of a minister, in consequence of the statute 17 Geo. II c. 11. had fallen under his jus mariti.

The merits of this question depended on the construction of the following clauses.

‘And be it enacted, by the authority aforesaid, That the payments herein after directed shall be made to the children or widows respectively named in the warrants; if the persons so named are majors, and to the tutors of such of them as are minors; and if they have no tutors or curators, to such person or persons as shall be authorised for that purpose by an act of the presbytery or university respectively, of which the person under whom the provision is claimed was last a member.’

‘And be it enacted, &c. That the foresaid annuities payable to the widows, and the provisions payable to the children of the aforesaid ministers of the Church of Scotland, and of the heads, principals, and masters of the aforesaid universities, shall not be liable to any arrestment, but shall be paid to the windows and children themselves, or to their tutors or curators, or trustees aforesaid, or to their executors, administrators, or assignees, any law or usage to the contrary notwithstanding,’

‘And be it enacted, &c That the provisions to the children of ministers, &c. falling due in consequence of the death of their respective fathers, or of the death or marriage of the widows of their said fathers, in any one year, computed from the 22d day of November in the year following, shall be payable on the 13th of August thereafter, in the manner herein after mentioned.’

Pleaded for Mrs Hay the relict; 1 mo, It was the intention of the Legislature by this statute to secure to the widows and children of ministers a fund of a personal and alimentary nature. As care has been taken that it should not be attachable for their debts, it would be highly incongruous, that by falling under the jus mariti, it should become attachable for those of their husbands.

2do, In terms of this statute, the period of Mr Donaldson's death must be held to have been the 22d of November 1780. The provision, therefore, to his daughter was not exigible till the 13th of August 1781. Of course, Mr Hay, her husband, having died in March 1781, the money due from this fund never vested in his person jure mariti.

Answered, 1mo, A husband being the legal curator of his wife, and marriage a legal assignment of her personal estate, the sums due to the children of ministers, which are exigible by their tutors and curators, and transmissible by assignation, must belong to the husbands of such as are married.

Nor do the consequences supposed to flow from this doctrine tend to any thing absurd or irrational. While the persons who are the objects of this enactment remained unmarried, it was exceedingly proper that what was intended for their subsistence should be unattachable by their creditors. But as by marriage, a claim of aliment of a more permanent, and generally of a more beneficial nature, arises in their favour, the restriction formerly affecting this species of property was no longer necessary.

2do, The sums now in dispute, although not exigible till August 1781, became due to Mrs Hay the moment her father died.

The Lords found, ‘That the sums due to Mrs Hay, as the daughter of a minister, had fallen under the jus mariti of her husband.”

Lord Reporter, Hailes. Act. Crosbie, Geo. Fergusson, Alex. Fergusson. Alt. Nairn, Sir John Ramsay. Clerk, Robertson. Fol. Dic. v. 3. p. 279. Fal. Col. No 106. p. 168.