Scottish Court of Session Decisions

Subject_1 SERVICE AND CONFIRMATION.
Subject_2 SECT. III.

General Disponee.

James Buchanan and John Auld,
v.
Adam Grant

Date: 20 July 1784
Case No. No. 21.

Payments to the creditors of a person deceased, in consequence of a general mandate from the nearest in kin, or general disponee unconfirmed, effectual in a question with the creditors of the defunct confirming.

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A trading Company, of which Adam Grant was the managing partner, being indebted to William Galdie, deceased, in the sum of £1219 Sterling; George Galdie, the nearest in kin, and general disponee, authorised Mr. Grant, out of that fund, to pay his predecessor's most pressing debts.

Within two years after the death of William Galdie, Mr. Grant accordingly disbursed the sum of £1091. Being then sued by James Buchanan and John Auld, as executors-creditors of William Galdie, for a much larger sum than remained in his hands, the Lord Ordinary found, “That the sum of £1219 Sterling, acknowleged to be due to William Galdie at the time of his death, was in hæreditate jacente of him, and could not be diminished by the payments made by the defender in consequence of a general order from George Galdie, the nearest in kin, or general disponee to the defunct; seeing the said George Galdie had made up no legal title in his person, either by confirmation, or by obtaining decreet against the defender.”

In support of this judgment, which was brought under the review of the Courts,

The pursuers pleaded: The modern practice, in order to facilitate the transmission of moveable property by succession, has dispensed with confirmation, either where possession of the effects has been apprehended by those entitled to the executry, or where, with regard to nomina debitorum, which are incapable of actual possession, the successor, by obtaining payment, or a corroborative obligation in his own favour, has been substituted in the place of the deceased. But the security of creditors, the primary and essential object of confirmation, is still unimpaired. A payment by a debtor of a person deceased, though an effectual bar to every claim by the succeeding nearest in kin, will afford no defence against a creditor of the deceased confirming. Hence a debtor in no case can be compelled to pay without a confirmation of the whole debt; a regulation surely altogether unreasonable, if the discharge by the nearest in kin were a complete extinction of his obligation.

Nor, though payments to the nearest in kin were effectual, even against the creditors of the predecessor, would it follow that such as are made to the creditors of the deceased, by virtue of a general order from the nearest in kin, should be attended with the same consequence. In the former, the act of receiving payment, like the possession of corpora mobilia, may be considered as a complete transference of the property or right, while, by means of the universal representation thereby incurred, the creditors of the predecessor acquire an additional security. But a general direction to pay the predecessor's debts from the proceeds of his own estate cannot be viewed as an appropriation on the part of the nearest in kin. And as it can as little be thought to indicate his intention to incur a passive title, the funds may in this manner be withdrawn from the other creditors of the deceased, without the possibility of redress. It is likewise material, that no decreets were here obtained, either by the nearest in kin, or by the creditors to whom the payments were made. If that authority is requisite to an executor confirmed, both for liquidating the debt, and as a notification to other creditors, a pro-executor, or the mandatary of the nearest in kin unconfirmed, cannot surely be in a better situation.

Answered for the defender: It is now a fixed point, that possession of moveables, or the receipt of sums due to the predecessor, is sufficient, without confirmation, completely to vest the right in the nearest in kin, or general disponee. No rule, however, could be more unjust, if limited to the interest of those entitled to the succession, while the effects thus transfered to them were still subject to the creditors of the deceased, as if no intromission had taken place. The inevitable consequence would be, that a debtor to an opulent estate might be compelled, at the distance of 40 years, to pay a second time to those who, during that interval, had trusted to the credit of the nearest in kin or their representatives.

That a debtor cannot be compelled to pay to an executor unconfirmed, proceeds on principles altogether different. The person supposed to be dead may be still alive; his moveable succession may devolve not to one only, but to a variety of persons in the same degree of propinquity; or those entitled to it may have been excluded by general dispositions, testaments, special assignations, or legacies. Even the character of general disponee, though more readily discernible than that of the legal successor, is yet subject to recal, or may be limited by posterior settlements. A debtor, therefore, is permitted to require confirmation, not for conferring a right, but for authenticating that already established. He is not, however, prevented from paying to the nearest in kin or general disponee unconfirmed; and a payment to a third party, in consequence of an order from them, must be equally effectual.

Nor was a decreet at all necessary against the defender. An executor, whose intention is not to incur an unlimited representation, is merely a trustee for those interested in the moveable estate, and ought not to pay without the warrant of a decreet. From neglecting that precaution, there cannot be a doubt that George Galdie has become liable to the pursuers, as if the sums paid by his order to the other creditors were still in medio, Ursula and Jean Smith contra James Marshall, No. 60. p. 2322. But the payments, in every other respect, are unquestionably valid. Nor have the pursuers the smallest ground of complaint, since it was in their power, in terms of the act of sederunt 1662, and the statute 1695, to prevent every intromission which they conceived to be prejudicial to their security.

The Lords did not distinguish payments by order of a nearest in kin or general disponee unconfirmed, from those made directly to himself; both being deemed equally effectual to transmit the right in succession, and to operate a complete extinction of the debt. It was farther observed, that the general order inferred a passive title, to the extent at least of the sums the pursuers might have drawn if the payments had not been made: Also, that the pursuers might still challenge the payments made to the other creditors, so far as an undue or partial preference was intended.

The Lords found, “That in respect Adam Grant, the defender, paid the money in question to the different creditors of the deceased William Galdie, by order of George Galdie, the nearest in kin and general disponee of the said William Galdie, he cannot now be found liable to pay the money over again to the pursuers as executors-creditors to the said William Galdie; and remit the process to the Lord Ordinary to hear the pursuers on their particular objections to those payments.”

Lord Ordinary, Gardenston. Act. Blair, Mat. Ross. Alt. Lord Advocate, Campbell. Solicitor-General Dundas, Mackintosh, Rolland. Clerk, Menzies. Fol. Dic. v. 4. p. 268. Fac. Coll. No. 170. p. 265.