COMMUNIO BONORUM. 1 149 Communio bonorum. In the institutional writers the moveable estates of both spouses are said to form a communion in which both have an interest, but of which, stante matrimonio, the husband is the sole administrator. To Lord Fraser especially is due the credit of having pointed out that, whatever may be the historical justification of the expression communio bonorum, it is as regards the law of Scotland, empty and misleading. The most recent writer on the subject characterises it roundly as a "lying phrase.”2 In the words of Lord Kinloch, "It becomes obvious that no such thing has ever been denoted by the expression as a proper partnership or society between the spouses during the subsistence of the marriage. Emphatically the reverse has been again and again held. During the subsistence of the marriage the husband is not merely administrator, he is the dominus or absolute proprietor of all the moveable estate belonging to both parties. Whatever is the wife's, passes to him by an implied legal assignation, and becomes his as much as what is primarily his own. He can dispose of it at pleasure without any accountability. It is all liable for his debts to the very last farthing. The wife has no right of disposal to the extent of one shilling, nor can she withdraw any part from her husband's power, nor in any way interfere with his absolute proprietary right. All this is triti juris. It is in vain, therefore, to say that during the subsistence of the marriage a society or partnership or anything resembling it, exists between the spouses. The wife is destitute of any right. The whole belongs to the husband. To call any part of the effects the wife's own during the subsistence of the marriage is a legal solecism."3 And in the same case Lord President Inglis said: "I do not think it necessary, in giving judgment in this case, to trace with any minute and jealous accuracy the extent to which that doctrine has been adopted in our law. I shall only say that, in regard to its practical results, all we know of the communio bonorum is that when the husband predeceases the wife, the wife is entitled jure relicta, to one-third or onehalf of that moveable estate, or of his free executry. . 1 Fr. i. 648, seq. 2 Dr. David Murray's "Property of Married Persons," p. 12. 3 Fraser v. Walker, 1872, 10 M., at p. 847. The right of the executors of the wife has been abolished by statute, whether she dies testate or intestate, and therefore, the only practical result of the communio bonorum, if indeed it be a result of that at all, is the jus relictæ.”1 What Subjects fall under jus mariti ?—Everything which belonged to the wife's moveable estate is carried by the jus mariti. Whatever is heritable remains excluded therefrom. No attempt can here be made to state with fulness the law of heritable and moveable. In general it may be said that the following subjects are recognised as heritable : 1. Lands, houses, mills, teinds, fishings. 2. Trees and natural fruits before separated from the ground. But industrial crops are moveable. And probably shrubs and plants in a nursery-garden being intended for sale, and forming a kind of artificial crop, would be held to be moveable as to succession.2 3. Heritable Securities. It is to be borne in mind that heritable bonds, though now moveable quoad succession, remain heritable as to the rights of the spouses. 3 No heritable security, whether granted before or after marriage, shall to any extent pertain to the husband jure mariti, where the same is conceived in favour of the wife, "unless the husband shall have right and interest therein otherwise." This very clumsy expression is borrowed from the Act 1661, c. 32. It means merely that such a bond may fall to the husband in terms of a marriage-contract, or other deed and not at common law, jure mariti. It makes no difference that the wife is not the original creditor in the bond. Although it comes to her as moveable succession, it does not fall under the jus mariti of her husband.* What Bonds are Heritable inter conjuges?—All bonds providing for payment of an annualrent, or with a clause of interest, which, in the language of the old lawyers, bear a tractus futuri temporis, were at common law heritable. They were made moveable by the Act 1661, c. 32, except quoad the fisk and inter conjuges. But such bonds were Act, 1868, 31 & 32 Vict. c. 101, § 1 Fraser v. Walker, 10 M., at p. 843. 2 Begbie v. Boyd, 1837, 16 S. 232. 3 Titles to Land Consolidation 117. 4 Hodge v. H., 1879, 7 R. 259. always moveable until the date at which the principal is payable. If a woman, in right of such a bond, marry before the date at which the principal is due, the bond falls within the jus mariti. But if the interest is not only made to run, but is payable before the date of payment of the principal, the bond will be heritable after the first term at which the interest is due.2 When the principal is payable at a distant or uncertain date. It was laid down in two old cases, that such a bond was heritable, even before the date at which interest or principal was payable. In the former, the term of payment of the principal was "diverse years" after the date of the bond, and though the creditor died before the first term's annual rent fell due, the bond was found heritable. 3 In the latter, the principal was to be paid at the first term after the death of a person living. But these cases seem inconsistent with the decision in the case of Gray v. Walker," in which it was held by Lord Neaves that a personal bond was moveable, which was payable on the death of a person living at its date, and bore interest after the term of payment. The debentures, bonds, and mortgages of public trusts and companies are heritable, apart from provision in the Private Act or some incorporated Clauses Act. So a mortgage by the Glasgow Water Works was found heritable quoad the widow, on reasoning which would seem to apply to the debenture of an ordinary joint-stock company. Such mortgages and debentures of companies under the Companies Clauses Consolidation Acts are moveable." Bonds secluding Executors.- Bonds taken payable to heirs and assignees secluding executors are heritable destinatione, and such a bond carried by service to a married woman as an heir would not fall under the jus mariti. But a bond of this character, if assigned or conveyed to a stranger 1 Douglas, 1629, M. 5504. 2 Ersk. ii. 2, 9; Ramsay, 1682, M. 4234 3 Gray v. Gordon, 1666, M. 3629. 4 Falconer v. Beatie, 1627, M. 5465. 51859, 21 D. 709. 6 Downie v. Christie, 1866, 4 M. 1067. 78 & 9 Vict. c. 17, § 46, and 26 & 27 Vict. c. 118, § 23. and his heirs, would go to the stranger's executors. And so such a bond assigned to the father of a married woman, he not being the creditor's heir, and falling to the daughter, by succession, would not be excluded from the jus mariti of her husband.1 Bonds taken to Heirs.-Where a bond is taken to A. B. and his heirs without mention of executors, this is understood as meaning heirs in mobilibus, and such a bond would fall under jus mariti.2 4. Dung. The dung produced upon a farm is heritable destinatione, although it has not yet been applied to the land. But this ratio would not be good unless the occupier was under a common law or conventional obligation to apply to the farm the manure produced upon it. If the owner were also occupier, the question would be one of intention to be gathered from previous practice and the custom of the district. 5. Building Materials.—When collected on the ground for the purpose of completing an unfinished building they are heritable destinatione. This seems contrary to the opinion of Erskine, which is approved of by Lord M'Laren.5 But the case founded on by the latter learned writer, lends, it is respectfully submitted, no support whatever to the doctrine of the text that building-materials are not heritable until actually added to the building. That case turned entirely upon the terms of a contract, and involved no question of law. And it was held in an older case that windowframes, doors, and the like found within a house when a-building, but not yet fixed to their proper places belong to the heir. The case there did not require to be put higher than that such specially constructed pieces of work 1 Ersk. Prin., 18th Ed. 120. Lord Fraser thinks the question open, Fr. i. 722. 2 Ersk. Prin. 120. See Lesly v. Nicholson, 1725, M. 5766; and Meuse v. Executors of Craig, 1748, M. 5506, for an exposition of the general doctrine. 3 Reid's Executors v. R., 1890, 17 R. 519. 4 Ersk. ii. 2, 14. 5 M'Laren on Wills, i., p. 184. 6 Stewart v. Watson's Hospital, 1862, 24 D. 256. 7 Johnston v. Dobie, 1783, M. 5443; and see dictum of L.P. Inglis in Reid's Executors, supra, at end of p. 522. MONEY HERITABLE DESTINATIONE. 153 as window-frames made to fit a particular place in a building must be regarded as already part of it destinatione. But "some of the judges seemed to be of opinion, that even the simple collecting of materials for building might often denote the animus destinandi of the proprietor, so as to render them heritable. Others appeared to admit no other rule but the then actual state of the subjects. The opinion of the majority was, that in cases like the present where the will of the proprietor, so strongly marked, is actually carrying into execution by overt acts, such animus should have full effect."1 6. Sum to be applied to Heritage.-A sum of money may be rendered heritable destinatione if it appear plainly that it was intended by the deceased to be applied to heritage. Thus a man sold part of an estate which was subject to a burden, and intimated to the creditor in the bond his intention to pay off the debt. The creditor was entitled to six months' notice, and the debtor invested the price of the bonds sold, amounting to £16,000, in the funds until this time had expired. Before it had elapsed the debtor died, and it was held by the House of Lords that his residuary legatee was bound to relieve the heir and pay off the bond. And where a man had commenced to build a house, and had accepted contracts for its construction, but died when it was in building, it was held by Lord Ormidale, Ordinary, that the sum necessary to complete the house according to the plan of the deceased, even in excess of the contracts, was heritable destinatione.3 2 7. Fixtures.—According to the brocard “quicquid plantatur solo, solo cedit," articles, in their own nature moveable, may become heritable by being attached to lands or buildings. The cases, it must always be remembered, turn upon intention, and the questions to be determined are-(1) Was there physical annexation? and (2) Was it the intention of the person putting up the fixture that it should remain per 1 Johnston v. Dobie, supra, M., at p. 5444. 2 Minto v. Elliot, 1825, 1 W. and S. 678. 3 Malloch v. M'Lean, 1867, 5 M. 335. 4 See Justinian Inst. ii. 1, §§ 29, 30; Broom's Maxims, 6th Ed. p. 376. |