Scottish Court of Session Decisions

Subject_1 HEIR and EXECUTOR.
Subject_2 SECT. II.

Mutual Relief.

David Mullo
v.
James and Robert Mullos

Date: 20 December 1758
Case No. No 18.

An heir was found entitled to relief from the executor of the provisions in a contract of marriage, although the obligant in the contract had bound himself to lay out money or land for these provisions.

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By marriage-contract, in the year 1743, betwixt Alexander Mullo and Christian Robertson, Alexander had “bound and obliged him, his heirs and executors at and against the term of Whitsunday thereafter, to provide and have in readiness, of his own proper means and effects, the sum of 10,000 merks; and to ware, employ, and bestow the same, upon land, or other good security, for annualrents; and to take the rights and securities to be be granted therefor, conceived in favour of himself, and the said Christian Robertson, his promised spouse, and longest liver of them two, in liferent, and to the child or children to be procreated between them of said marriage, their heirs, executors, or assignees, in fee; and failing of children, L. 1000 of said principal sum, to fall, accresce, and belong to the said Christian Robertson, her heirs, executors, or assignees, in case she shall happen to survive the said Alexander Mullo, her apparent husband.”

An after clause in the same marriage-contract is in the following words:

“And in order that the said Christian Robertson may be the better secured in the regular payment of the annualrent of the foresaid principal sum of 10,000 merks, in case she shall happen to survive him, he thereby binds and obliges him and his foresaids thankfully to content, pay, and deliver, to the said Christian Robertson, during all the days of her lifetime, after his decease, an yearly annuity or jointure of 500 merks, or any other annualrent agreeable and corresponding, by the laws of this kingdom for the time, to the foresaid principal sum of 10,000 merks.”

After this marriage, Alexander purchased a tenement of houses in Dundee, of L. 20 yearly value, the rights of which he took, not in terms of the contract of marriage, but, in general, to himself, his heirs and assignees.

Alexander died in the year 1755; Christian Robertson survived him; there were no children of the marriage; his subjects were the above tenement, and L. 700 of personal estate.

When on death-bed, Alexander executed two settlements; by the one, he conveyed his moveable subjects to his nephews James and Robert Mullos, and burdened them with the payment of 200 merks of his wife's jointure provided to her by the above contract of marriage; by the other, he disponed the tenement in Dundee to another nephew, Alexander Mullo; with this proviso, “Providing and declaring, that the said Alexander Mullo shall, by acceptation hereof, be expressly bound, burdened, and obliged, to content and pay yearly to Christian Robertson his spouse, during all the days of her life, after his decease, the sum of 300 merks Scots, as a part of the yearly jointure provided to her by the marriage-contract entered into between them.”

David Mullo, heir of conquest to Alexander, brought a reduction of Alexander's disposition of the tenement to his nephew Alexander on the head of death-bed, and prevailed in it. But James and Robert Mullos, the legatees of Alexander, and who were likewise, with others, executors to him, appeared for their interest in the process, and claimed relief of the sum of 300 merks yearly, payable to the relict, as provided by the death-bed disposition, to which extent they insisted to support the validity of the death-bed disposition.

Pleaded for David Mullo; Alexander Mullo, by taking the investitures of the tenement to his heirs in general, did not implement the obligation in his contract of marriage, to take to his wife and self in liferent, and children of the marriage in fee. This last provision therefore remained only in nudis terminis of a personal obligation, and as such was ultimately prestable by the executor, who was bound to relieve the heir thereof. Neither could that obligation be transferred from the executor upon the heir, upon the footing of the second clause above mentioned of the contract of marriage; for the first clause is the primary, principal, and capital obligation; the after clause is only an accessory obligation to the other. It is so immaterial, that nothing is therein expressed which would not have been implied, whether expressed or not; it being plain, that if the husband was bound to lay out 10,000 merks for the wife's liferent, he and his representatives would have been liable to her for the interest of the money whether laid out or not; and therefore any question of relief betwixt the heir and executor must be regulated by the governing clause; in which view that clause never having been implemented, the implement of it lies now upon the executor.

Answered; 1mo, There is no law that establishes a privilege to a clause first inserted in a writing, to abolish the subsequent clauses of the same deed. All the clauses, whether first or last in point of order, are to be considered equally as declarations of the will of the parties, and to have their full effect in the several events for which they are calculated. Nor is it to be presumed, that any clause is added that is entirely insignificant or useless. It is to be presumed, that the parties had a view to a different event in the second clause; if it will admit of that construction, any construction will be taken rather than to suppose they meant to say nothing, or nihil agere. Now, it is obvious that there are two separate events, to which these clauses fall respectively to be applied. The first is, Where the wife and children shall happen both to be creditors to the father at his decease. The second is, Where there are no children existing, but the wife is the sole creditor upon the contract. In the first event, the father is bound to lay out the sum in favour of himself and his wife, and longest liver, in liferent, and the children of the marriage in fee. But for the other event, when there happens to be no children, and the wife is the only person who has an interest in the provision, the other clause is adapted for securing her in the due payment of the annuity or annualrent yearly, during her life. Suppose the wife had been past child bearing at the time of the marriage, no writer could have inserted the first clause in the contract; the second would then have been thought the only proper obligation to lay upon the husband, viz. to pay or secure to his wife a yearly annuity, to be paid to her in case of survivance; and if that would have been the only clause, had the event that has now existed been foreseen at the time, it seems pretty plain, in constructing the effect of the obligation, that that is the clause to be chiefly considered; and not the other, which was calculated for a different event that has not happened.

Now, this being taken for granted, it is an indisputable point, that an obligation for payment of an annual sum, which is to take place after the debtor's death, will affect his heirs principally; and the executors, if sued on it, will be entitled to relief against the heir. This takes place, though the obligation has no respect to lands; and the reason is, that the executry is a limited succession, which comprehends only the moveables that belonged to a defunct at the time of his death. They are supposed to be all contained in an inventory then taken up, and the extent of them to be ascertained at that period; and therefore, if a defunct had obligations due to him that depended upon distant events, which might or might not exist after his decease, such obligations, though merely personal, will not fall under his executry; e. g. if he had acquired a liferent annuity due to a third party, or had entered into a contract of victual for a tract of years, all such obligations, cujus dies cedit de anno in annum, will fall to his heirs, and not to his executor; and, e contra, obligations of that nature will ultimately affect the heir, who is entitled to a permanent succession, and not the executry, which comprehends only what is in bonis defuncti at the time, and cannot from the nature of the thing admit of a tractum temporis.

2do, Alexander's taking the investiture to the heirs in general, which would have made it go to the heir of the marriage, was a virtual implement of the contract.

“The Lords found, That in this case the heir is entitled to relief against the executor.”

For David Mullo, Lockhart. For James and Robert Mullos, Ferguson. Fac. Col. No 152. p. 270.