Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. VII.

Rights having tractum futuri temporis.

Janet and Isobel Robertsons, Daughters and nearest of Kin to Baillie Robertson in Inverness,
v.
William Baillie Commissary there

Date: 13 June 1705
Case No. No 44.

Payment of an annuity for years subsequent to the debtor's decease, made by his executors without distress, not sustained as an article of exoneration in the executor's accompts, as being an heritable debt, of which the heir was bound to relieve the executor.

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Janet and Isobel Robertsons, as nearest of kin to Baillie Robertson their father, having pursued Commissary Baillie, who married their mother, as executor confirmed to the said Baillie Robertson, for their share of the inventory, the process resolved in a count and reckoning, wherein one of the articles of the Commissary's discharge was three years and a half's annuity of 400 merks, extending to 1400 paid to the defunct's mother, conform to his obligment.

It was objected against this article, That it could not be allowed because the payment was made without distress, for terms subsequent to the defunct's decease, which were heritable quoad the debtor.

Answered, By law it is optional to the creditor to affect the executry primo loco; and payment in such a case, even without distress or decreet, furnisheth action of relief to the executor and nearest of kin against the heir; Hill against Maxwel, No 43. p. 5473; Falconer against Blair, 7th March 1629, voce Proof; and therefore the article ought to be allowed.

Replied, 1mo, It may be denied, that an executor, so long as there is an heir and heritage, can at all be decerned for terms after the defunct's decease, of a simple annuity not accessory to a stock. For albeit where there is is an obligement for a stock or principal sum, that as pre-existing to the debtor's decease, may oblige the executor for annualrents thereafter in consequence; yet in annuo legato dies nec cedit, nec venit, till the person to whom it is due survive the term: And quot anni tot sunt debita, L. 4. ff. De Annuis Legatis. So that such a simple annuity may be said not to have been properly a debt upon the defunct at his decease; and consequently should not burden his executry. And my Lord Stair observes, Instit. lib. 3. tit 8. § 64, That the heir only, and not the executor, is liable for annualrent, not accessory to a stock, for years after the debtor's decease, unless there be no heritage. 2do, The executor's paying officiously without distress, argued some fraudulent design, and was a negotium gestum for the heir bound in relief, and not for the nearest of kin whose interest it was not to quit their money without necessity, upon expectation of relief; nor yet was the negotium perfected by actually working out the relief against the heir; and negotiorum gestio doth not oblige where the affair is neither necessary, profitable, nor perfected, but merely spontaneous, and nouum negotium. 3tio, The executor being curator bonis, or a trustee, could not by an ultroneous payment burden the nearest of kin with the expenses of a process of relief, more than a curator to a minor engaged in cautionry, could warrantably pay the debt without distress. 4to, The decisions cited by the defender touch not the present case, which is not, whether an executor paying an heritable debt may recur against the heir? but, whether an executor doing this without distress, and thereby understood to act rather for the heir than the nearest of kin, without compleating the matter by recovering relief, should be left to seek his relief off the heir? 5to, There is no ground for the executor to say, that the forehand payment was a piece of frugal or provident administration, whereby any needless expense to the nearest of kin was saved; for non constat, that ever the executor would have been pursued; and if he had been pursued, he would have been assoilzied in the case of a simple annuity for terms after the debtor's decease. Nor do the creditors get expenses from executors.

Duplied, Utcunque dies non cedit in the legacy of an annuity, till after the term of payment; yet in the case of annuities due by stipulation or contract, (such as is the subject of the present controversy) the obligement takes effect, and is binding from the date, § 3. Instit. de Verborum Obligat. And even a liferent annuity not accessory to a stock, may burden and exhaust the executry, if the creditor pleases, quoad terms subsequent to the debtor's decease, though with the benefit of recourse for relief against the heir, if there was any heritage, and that is all which my Lord Stair saith in the place cited by the pursuers. 2do, An executor's paying without a decreet for his warrant, can only be quarrelled by a creditor of the defunct who is disappointed by the executor's partial payment, and not by his nearest of kin, who have only relief of heritable debts against the heir. Neither can the payment made by the executor be understood as a voluntary, but as a necessary and profitable deed. For quorsum should he have been at the expense of warding off the annuity till he was decreeted, when no defence was competent to him; seeing decernendus habetur pro decreto; according to the rule, cingendus habetur pro cincto; and the executor's want of a decreet cannot hinder the nearest of kin's recourse against the heir, nor could his having such a decreet forward it. Neither doth any law oblige the executor after the inventory is exhausted, to commence any process of relief for the nearest of kin against the heir, in order to repeat what was paid to creditors; because, the office ends with exhausting of the inventory, 3to, The inference doth not hold from that of a minor's curator ultroneously paying a cautionry for the minor, intuitu of the minor's recourse for relief; because the executor after he is once lawfully exhausted of the defunct's means, is no further concerned; but the curator is concerned in the minor's estate. And yet the minor being obnoxious to payment as cautioner bound conjunctly and severally, the curator should not oppose it by ineffectual resistance. The executor is not here demanding repetition as a negotiorum gestor, but allowance of what he acted warrantably in the terms of his mandate, by the nomination and confirmation for negociating the inventory, as should accord of the law, which expressly subjects the inventory to heritable debts, if the creditor please.

The Lords refused to allow, as an article of exoneration, the payment of the annuity for years subsequent to the debtor's decease, as being an heritable debt.

Forbes, p. 2.