Scottish Court of Session Decisions

Subject_1 ANNUALRENT.
Subject_2 ANNUALRENT due by Executors.

Archibald Arbuthnot and Others
v.
Lieutenant Robert Arbuthnot

Date: 4 January 1758
Case No. No 76.

A legatee found entitled to the profit arising upon his share of the defunct's funds, as well as to the legacy itself.

Click here to view a pdf copy of this documet : PDF Copy

Robert Arbuthnot, on the 15th of February 1752, executed a testament in England, by which he gave to his wife the liferent of his whole estate; and, failing children, divided his fortune into legacies to his wife and certain other persons his relations: Mary Arbuthnot, his wife, he named executrix of his will. He died soon after.

His only child died on the 27th of July 1753; and his wife also died in March 1754, having first made a settlement in favour of her sister Mrs Elisabeth Arbuthnot; who having likewise died, Lieutenant Arbuthnot succeeded to her as nearest of kin.

The testator's estate, at the time of his death, consisted of L. 932: 8s. of South-Sea, Bank, and India annuities; and he had also L. 187 due to him by two moveable bonds, and L. 115 not bearing interest.—His debts amounted to L. 162; so that the debts exceeded that part of the executry which did not bear interest in L. 47.

Mary Arbuthnot, the executrix, sold part of the South-Sea, Bank, and India annuities before her death; but did not uplift the moveable bonds.—Elisabeth her sister, sold the remainder of the stocks

Archibald Arbuthnot, and the other legatees, insisted against Lieutenant Arbuthnot, as representing the executrix, That they were not only entitled to the legacies specified in the will, but to the interest from the time of the wife's death, the liferentrix, which would have fallen due upon them if the testator's funds had been allowed to remain in the stocks; for that there was no necessity to have sold out more than was wanted to pay off the L. 47 remaining of the testator's debts, after applying his funds which did not bear interest.

In support of this claim, the legatees contended, That an executor is liable for annualrent of sums mentioned in the inventory as bearing annualrent, which had been decided 26th of June 1705, Robertson against Baillie, No 73. p. 533. And, at any rate, the division of the testator's funds ought to be considered as taking place at the time of his death; and therefore the legatees ought to receive their part of the funds with all the profits attending it.

Answered, Interest, by the law of Scotland, is not due nisi ex lege vel pacto; and there is no law by which legatars are entitled to any more than the sum legated, and they have themselves to blame, if they do not recover payment immediately after the legacies become due. Nor does an executor find caution to make payment of any interest upon the sums confirmed. The nearest of kin may indeed have a claim in equity for interest upon such of the funds as bore interest to the defund himself; but this will not apply to the case of a legatee.

“The Lords found, That that part of the defunct's estate which was disponable by testament, is to be divided, at the widow's death, proportionally amongst the legatees; and that each legatee is entitled to a proportion of the sums bearing interest at the testator's death, with the interest thereof from the widow's death.”

Act. Johnstone. Alt. Lockhart. Fol. Dic. v. 3. p. 30. Fac. Col. No 80. p. 143.