Scottish Court of Session Decisions

Subject_1 EXECUTOR.
Subject_2 SECT. IX.

In how far, and by what means, the executor is constituted proprietor.

Walter Sloan-Laurie,
v.
Alexander Spalding-Gordon

Date: 27 July 1779
Case No. No 94.

Tho’ a partial confirmation, qua nearest of kin, is found to transmit the whole, yet subjects not specially confirmed, and not intromitted with, remain still in bonis of the defunct, and must be taken up accordingly, and are affectable by his debts.

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

In 1741, Walter Laurie granted a legacy, in favour of Walter Sloan, in the form of a bond, for L. 60, payable one year after his death. Laurie died soon after; and, in 1745, James Laurie, his nephew, and only next of kin, had a general intromission with his moveable effects, and obtained himself confirmed in a part of them.

Walter Laurie, some time before his death, had conveyed over to Robert Gordon a moveable bond for L. 500, which Gordon owed him, ‘reserving the annualrents during his own life.’ The interest, therefore, remaining due to Laurie on the bond, when he died, came to be part of the moveable effects in bonis of the defunct.

In 1775, Sloan, who had got no payment of his legacy, confirmed executor creditor to Walter Laurie in this subject, and brought an action against Alexander Spalding-Gordon, the representative of Robert, for payment of these interests.

The defender, in bar of this action, contended, that the whole of the defunct's moveable effects, and of consequence, these interests were vested in James Laurie by means of his partial confirmation; and, that he had claims against Laurie sufficient to compensate the interests. In support of this objection,

Pleaded for the defender; The nearest of kin is the heir in mobilibus. His right to succeed to the moveable effects was known in the antient common law of Scotland, though the usurpation of the clergy had greatly encroached on it. The act 1540, c. 120. gave the first check to these usurpations. In this act, the nearest of kin is supposed to be, ipso jure, vested with a proper right of succession, separate from any authority given by the ecclesiastical court.

The statute sets forth the iniquity done by executors-dative, in withdrawing the effects of children dying under age “fra the kin and freinds that suld have the samen be the law;” and enacts, that, for the future, the nearest of kin “suld have their gudes.” From this time the right of the nearest of kin to the defunct's moveables came to be acknowledged in courts of law, and held to be expressly independent of the office of executor, or any title derived from the ecclesiastical court; Stair, b. 3. t. 8. § 11. A partial confirmation by the nearest of kin, and possession of any part of the subjects, as they implied that he had entered on the succession, were held to vest in him the right of the whole effects. Accordingly it was early found, and is now a fixed point, that these are sufficient upon his death to transmit the whole moveables to his heirs at law; Bells against Wilkie, February 12. 1662, voce Nearest of Kin;. Forsyth against Paton, No 6. p. 2941.

By act 1690, c. 26. the succession in moveables was freed from what remained of those restraints which the clergy had laid on it; all the modes by which the Commissary court had attempted to oblige the nearest of kin to confirm, were entirely prohibited, and the act has been considered as allowing the succession in moveables to be taken up by the possession alone without confirmation; Br. antiq. p. 180.; Bankt. b. 3. t. 8. § 118, 119. On this ground, the decisions proceeded, M. Whiter against Miller, November 14. 1744, Falc. voce Service and Confirmation; Ogilvie against King's Advocate, February 13. 1760, No 92. p. 3916. But, in the present case, there was both an intromission with the effects, and a partial confirmation, which has always been held a legal method of taking up the succession, and vesting the whole subjects in the nearest of kin.

The preference given to the creditors of the defunct doing diligence on the subject within year and day, over those of the nearest of kin, does not aid the pursuer's plea. It is merely an exception from the common law, introduced by a special provision in the act 1695; and, therefore, where no such diligence is done within the year and day, and there has been a partial confirmation by the nearest of kin, the creditor of the defunct has no preference on the moveable subjects that belonged to him. If he can attach them at all, it is only on the footing of their being the property of the nearest of kin, who succeeds to the defunct in this part of his subject.

It has now become an established practice for the debtors of the defunct to pay his nearest of kin, and to take discharges from him without scruple, though in the knowledge that their debts have not been confirmed. They have been considered as perfectly safe in doing so; and such discharges are held to be valid and effectual; Bankt. b. 3. t. 8. § 120. But, if it shall be found that nothing is vested but what is specially confirmed, no debtor will rely on such a discharge. Confirmation of the debt will always be required before it is paid. Thus, the succession to moveables will be loaded with an additional expense.

Answered for the pursuer; At an early period, the clergy assumed a superintendence of the execution of all last wills, chiefly on pretence, that the execution of a trust was a matter of conscience, and all testaments implied a trust. The person appointed by a testament to administrate, was obliged to apply to the ecclesiastical court, for leave to enter on the management, to make up an inventory of the subjects in that court, and find caution to administer properly.

In succession ab intestate, the clergy interfered on the same ground. The deceased having failed to name a trustee, this defect was supplied by the bishop of the diocese, in consequence of his general controul over trusts.

In distributing the effects, the defunct's creditors were first to be paid by the executor-dative. A portion of the effects was then set apart to answer the legal rights of relict and children; and the clergy considered the remainder of the succession as bona caduca in their own hands, to be applied as they thought fit. The object of the act 1540 was merely to rectify this latter abuse. It applied only to a particular case; but, as the power of the clergy soon after declined, the statute received a liberal interpretation. The dead's part, no longer considered as a caduciary right in the hands of the church, was transferred to the nearest of kin, who came to be entitled to the office of executor in all cases.

But, although the clergy were thus restrained from seizing on the dead's part, the nearest of kin, in order to establish his right in any particular subject, must still apply to the proper court, and obtain himself specially confirmed in that subject. A partial confirmation is only sufficient to vest the office of executor in the nearest of kin, and to make it transmit, on his death, to his executors. By such confirmation, he obtains and takes possession of the office; and being a general trustee for all concerned, may intromit with the defunct's other subjects, in order to account more completely to the creditors.

The nearest of kin, though in possession of the office of executor, is not, on that account, effectually vested in the defunct's subjects. He has no jus exigendi. It is is an established point, that the defunct's debtor may always refuse to pay, until the debt itself is confirmed. Even when the nearest of kin gets a license to pursue, he is only entitled to obtain a decree, and the debt must be confirmed before extract; so that he never can have execution against the effects themselves without a confirmation. None of the defunct's effects, therefore, vest, pleno jure, in his nearest of kin, until they are specially confirmed. Though he had even obtained possesion of the effects, they might be attached, as in bonis defuncti, by the creditors of the deceased, and the creditors of the executor, in whom they never were vested, would have no title to challenge their diligence.

The decisions founded on do not apply. They go no further than to show, that the office of executor, established in the person of the nearest of kin, transmits to his executors. These heirs may be entitled to intromit, but, without a special confirmation, are not vested in the right-to any subject. There is no ground for supposing that the act 1690 meant to alter the law in this matter. It establishes only, that the Commissary-court cannot oblige a person to confirm for their emolument, if he does not otherwise choose it.

The statute 1695, c. 41. is in favour of the pursuer's plea; for it proceeds on the hypothesis, that, at common law, creditors of the nearest of kin had no access to any subjects which their debtor did not choose specially to confirm. It directs by what methods the creditors shall be enabled to attach such effects for the future; but, when these, methods are not used, as in this case, the subject remains in bonis defuncti, attachable by the diligence of the defunct's creditors.

Though the executor cannot oblige the debtor to pay, if the debt is not specially confirmed, yet payment made to a person vested in the office of executor, is always sufficient to liberate the debtor. The determination of the Court, therefore, in this case, cannot affect his safety.

The cause was determined on a hearing in presence, and memorials.

The Court found, ‘That the annualrents in question are to be held as in bonis of Mr Walter Laurie, affectable by his debt.’

Lord Ordinary, Hailes. Act. Crosbie. Alt. A. Miller. Clerk, Tait. Fol. Dic. v. 3. p. 191. Fac. Col. No 87. p. 169.