Scottish Court of Session Decisions

Subject_1 IMPLIED ASSIGNATION.
Subject_2 SECT. I.

The principal conveyed, accessories follow. Conveyance of a subject to which the disponer has no right.

Archibald Arbuthnot, Merchant in Edinburgh,
v.
Robert Arbuthnot, Esq

Date: 25 June 1766
Case No. No 14.

A father executed a general disposition to his eldest son, and afterwards assigned certain bonds in security of a provision to his second son. A sum of interest due on one of these bonds above the amount of the provision, was found to belong to the second son.

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Alexander Arbuthnot merchant in Edinburgh, in the year 1753, executed a general settlement of his whole effects, in favours of Robert his eldest son; at the same time, burdening him with the payment of his debts, and of the provisions to his younger children, with an express exception of such particulars as he had conveyed to them.

Of equal date with the above mentioned settlement, he, by bond, obliged himself, his heirs, executors, and successors, to pay to Archibald Arbuthnot his second son L. 3000 Sterling at the first term after his death; after which the deed proceeds in the words which follow, and which gave rise to the question between the parties:

“And for the more ready and sure payment to the said Archibald Arbuthnot, of the foresaid sum of L. 3000 Sterling, with interest thereof, as is before mentioned, Wit ye me to have assigned and disponed, as I, by these presents, assign, transfer, and dispone to, and in favour of the said Archibald Arbuthnot, his heirs, executors, and assignees, the sums of money principal, contained, and to be contained in a list or inventory made, or hereafter to be made, and subscribed by me, relative hereto, with the penalties that shall be contained in the securities for the said principal sums, and with what interest shall be due thereon, at the time of my death, and all time coming, so long as the same shall remain unpaid; and which list or inventory, with these presents, shall have the full effect of a special disposition and assignation, as much as if every article thereof were herein particularly inserted and expressed, with full power to the said Archibald Arbuthnot and his foresaids, to uplift and receive, and to do every thing necessary for making effectual the sums of money so assigned, that I could have done in my lifetime: And it is hereby provided and declared, that, in case I should fail to make out any such list or inventory, or if made out, in the event, that all or any part of the sums of money therein contained shall be uplifted and disposed of by me during my lifetime, and that I should fail to replace the same in whole or in part, or if the principal sums to be contained in such list or inventory shall not extend to the said sum of L. 3000 Sterling, the obligation to pay before inserted shall subsist and remain binding on my heirs and executors, to the full extent thereof, or so far as there shall be a short coming of the said sum of L.3000 Sterling, and for interest and penalty upon the whole, or in proportion to such short-coming as is before stipulated. Upon the other hand, if there shall be to the extent of the said sum of L. 3000 Sterling principal at the time of my death, assigned and made over to the said Archibald Arbuthnot, and the securities for the same be herewith delivered to him, the foresaid obligation for payment shall become void, and noways affect my heirs and executors, nor shall they be liable to make the same effectual to the said Archibald Arbuthnot or his foresaids, though the debtors shall afterwards become insolvent, or that the money, or any part thereof, shall be lost by any other accident. But, in case the sums particularly assigned to the said Archibald Arbuthnot, and his foresaids, shall happen to exceed the said sum of of L. 3000 Sterling, neither he nor they shall be accountable to my heirs or executors for any such excresce or surplus.”

Of the same date also with the settlement above mentioned, Alexander Arbuthnot signed an inventory relative to the bond of provision, wherein he conveys to his son Archibald, the sum of L. 1000 Sterling, due to him by David Scott as treasurer to the Bank of Scotland, and another sum of L. 2000 Sterling, also due to him by the Marquis of Tweddale, together with the penalties contained in the said bonds, and all the annualrents that should happen to be due on the foresaid principal sums.

Alexander Arbuthnot died in October 1764; and, at his death, it appeared that he had uplifted the L. 1000 Sterling due by Scott, and assigned as above mentioned; and also, that, at the term of Martinmas after his death, there was L. 175 Sterling of interest due on the Marquis of Tweddale's bond.

Robert Arbuthnot the eldest son, in consequence of the general disposition in his favours, uplifted the L. 175 Sterling of interest due as above mentioned, and insisted that all that his father intended by the settlement in favour of Archibald, was to leave him L. 3000 Sterling at his death; and that, therefore, the interest uplifted by him must be imputed pro tanto of the L. 1000 Sterling which he acknowledged he was bound by his father's settlement to replace.

Archibald Arbuthnot, in order to recover the disputed L. 175 Sterling of interest, brought an action against his brother, in which it was pleaded for him, That their common father's intention in every clause of the bond of provision in his favour, was to give him the chance-benefit of whatever interest might be due at his death, upon all or any of the sums assigned to him; and that the same was not to impute in payment of the special provision of L. 3000 Sterling principal made to him; for, as it appeared from the deed itself, that the pursuer was bound to take his chance of any short-coming of the sums provided to him by the debtor's insolvency, so their father was, on the other hand, equally desirous that, in another event, the pursuer should have the chance of any accidental benefit. In every clause of the deed he carefully distinguishes between the principal sum and interest of the debts assigned; and although the provision of L. 3000 was only to become due at the first term after their father's death, yet he assigns to the pursuer not only the principal sums contained in the inventory, but also what interest should be due thereon at his death; besides, in the event which happened, namely, that some of the debts assigned might be uplifted by him in his lifetime, and omitted to be replaced, he provides, that if the principal sums to be contained in such list or inventory shall not extend to the sum of L. 3000 Sterling, the obligation to pay shall subsist and remain binding on his heirs, executors, and successors, so far as there would be a short-coming of the L. 3000; which plainly indicates the meaning of the deed to be such as the pursuer now contends for. But, further, supposing old Mr Arbuthnot had not uplifted any of the sums contained in the bonds assigned, and that at the time of his death many years interest had been due on these, it could not be denied, that the pursuer would have had as good a title to the interest, as to the principal; and, if such would have been the judgement of law, in case both bonds had been due at Mr Arbuthnot's death, the pursuer could not see any reason for presuming that he meant to deprive him of the interest of the one bond, because the other happened to be uplifted during his life.

Answered for the defender, That the pursuer's observations on the different clauses in the deed, although ingenious and plausible, are far from being solid or conclusive; for, from the first part of the deed it was clear, that Mr Arbuthnot intended that the provision to the pursuer should not exceed the sum of L. 3000 Sterling, with interest from the first term after his death. Neither was his having assigned the bonds above mentioned to the pursuer, to be Construed likewise into an assignation of the interest that should be due upon these bonds, for that the only intention of their father, by executing the bond and inventory in favour of the pursuer, was to prevent family-disputes amongst his children, and not to confer an additional provision on the pursuer; and if the deed was viewed in that light, the observations made on it by the pursuer, would appear to be very ill founded. The reason which Mr Arbuthnot gives for granting the assignation in favour of the pursuer, namely, to prevent family interferences, plainly shows, that his only intention was to avoid disputes betwixt his children; and if the different clauses of the deed are viewed in that light, the construction which the defender now puts upon them, will appear clear and evident.

“The Lords found the pursuer entitled to the interest that was due on the Marquis of Tweddale's bond at his father's death, extending to L. 175:11s. Sterling, and likewise to the further sum of L. 1000, and interest thereof from the first term after his father's death, and to expenses; and, on a reclaiming bill, they adhered without answers.”

Act. Lockhart. Alt. M'Kenzie, M'Queen. Clerk, ——. Fac. Col. No 41. p. 71.