Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 ANNUALRENT due by Executors.

Janet and Isobel Robertsons
v.
Commissary Baillie

Date: 26 June 1705
Case No. No 73.

An executor, a stranger, is pursued by the nearest in kin, minors, for their share of the inventory given up by the defunct himself. The executor found liable, from the date of confirmation, for interest of sums set down as bearing intrest; but not for interest of other sums not so expressed.

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In the action of count and reckoning betwixt these parties, called upon the 13th day of June instant, the Lords having repelled the 1400 merk article of exoneration, and found Commissary Baillie liable to the pursuers, as nearest of kin to Bailie Robertson, in a certain superplus of the inventary not exhausted: They craved annualrent for the said free superplus, upon the following grounds: 1mo, Nummi pupillares non debent esse inutiles vel otiosi; therefore annualrent ought to be decerned nomine damni; and as some sums in the inventory are mentioned to bear annualrent, all are presumed to be of that nature. 2do, The nearest of kin are legators quoad the superplus of the executry; and by l. 3. §. ult. l. 34. ff. de Usuris, annualrent is due for legacies. Yea, a father intromitting with a legacy left to his child, or the mother's third of moveables falling to that child, was found liable for annualrent thereof, 4th February 1665, Begg contra Begg, (Stair, v. 1. p. 264. voce Tutor and Pupil); 15th December 1688, Wynram contra Ellies, (Stair, v. 1. p. 570. voce Presumption, donatio non præsumitur.) And what holds in the case of a father cannot fail to be sustained against a step-father. 3tio, The defender acted, and must be liable to the pursuers, as their pro-tutor, by the act of Sederunt, 10th June 1665, at least for annualrent of their means intromitted with by him, while they were minors.

Answered: The inventory was not given up by the defender, But by the defunct himself in his testament, who may be supposed to have known the nature of his debts and gear best; and the Lords are not in use to allow annualrents in name of damages to any but trading merchants for commerce sake, 2do, Esto, the party did hold betwixt the interest of the nearest of kin as such, and that of legatars; yet the Roman law and our's differ as to annualrents in this, That regularly our law never allows annualrent but ex pacto vel lege, unless to merchants nomine damni; whereas the Roman law allows of it in bonæ fidei judciis ex mora. 3tio, The act of Sederunt 1665, can neither make the defender pro-tutor, nor subject him to annualrents; because, 1mo, It has no retrospct; and the defender was confirmed executor before the date on't. 2do, It relates only to such as intromit without any title, whereas the defender's, title of intromission was a confirmed testament.

The Lords found annualrent due for the sums in the inventory bearing annualrent, and that from the date of the confirmation; but not for other sums which were not mentioned in the testament, as bearing annualrent.

Fol. Dic. v. 1. p. 41. Forbes, p. 11.