Scottish Court of Session Decisions

This was an action by the widow of the late James Morris, of Albany House, Dunfermline, against her husband's trustees and Andrew Beveridge, a nephew of her husband, conjunctly-and severally, for payment of an annuity secured to her by marriage-contract. It appeared that James Morris and his brother William were joint pro indiviso proprietors of certain heritable subjects in virtue of a feu-disposition on which an infeftment followed in favour of neither of them. William Morris died in 1841, and James thereafter, until his own death in 1864, possessed his deceased brother's pro indiviso share of the property as heir—apparent of his brother, without making up any title. James Morris left a trust-disposition and settlement conveying his whole heritable and moveable estate to trustees for the purposes mentioned in the deed. Andrew Beveridge made up a title to the pro indiviso half of the property by serving as heir-of-line in general, and also of conquest, to William, his maternal uncle, passing by James, who had been more than three years in possession on apparency, and to whom Beveridge was apparent heir. The trustees made up a title to the other half. The trustees alleging that they were unable from the proceeds of James Morris estate to pay the annuity provided to the widow, the widow brought this action against the trustees and Andrew Beveridge, to have a conjunct and several liability established against the defenders for payment of her annuity, founding, as against Beveridge, on the statute 1695, c. 24. The plea principally insisted in by Beveridge was that the pursuer was not entitled to decree against him until she had discussed her husband's trustees and representatives. He maintained that the heir who is by the statute subjected to a passive title has the benefit of discussion, so that the creditors of the interjected person must discuss all the debtor's representatives before the heir can be condemned, referring to the authority of Bell's Com., i., 666–7.

The Lord Ordinary repelled the plea, adding this note to his interlocutor:—

“ Note.—The defender does not dispute that, to the extent of the value of the estate, to which he has made up a title passing over the pursuer's husband, he is liable under the Act 1695 for payment of her annuity. But he maintains that his liability is subsidiary to that of her husband's trustees and proper representatives, and that he is entitled to have them discussed before he can be called upon to pay. In support of this contention he refers to. the dictum of Mr Erskine, iii., 8, 94, that the heir who is by the statute subjected to a passive title has the benefit of discussion, so that the creditors of the interjected person must discuss all the debtor's representatives before the heir can be condemned;’ and to Mr Bell, i. Com., 666–7, and the case of Vint v. Dalhousie, M. 3562.

The Lord Ordinary thinks that the defender misapprehends the import of these authorities. The case of Vint, which is referred to both by Mr Erskine and Mr Bell, was a discussion as between heirs—the heir-male and the heir of line—and if Mr Erskine's words, which are not unambiguous, are to be taken as importing that the privilege goes beyond the ordinary right of discussion as between heirs, his doctrine is not warranted by the authority on which he grounds it. Mr Bell says, that ‘the personal responsibility of the entered heir, if not heir-at-law and representative of the deceased, is of the nature of a subsidiary obligation after the heirs of the deceased have been discussed,’ and he also refers to the case of Vint as the authority for the rule. He could not mean that the entered heir would be liable at all, even as a subsidiary obligant, if he was not an heir of the interjected person. The statute only enacts that he shall be liable for the debts and deeds of the person interjected, ‘to whom he was apparent heir.’ The Lord Ordinary understands Mr Bell as merely expressing the doctrine fixed by the case of Vint to which he refers—that if the heir entering to a remoter ancestor is not heir-at-law, and, in that sense, representative of the interjected person, but only his heir-male, or other heir of a limited kind, he is entitled to the benefit of discussion common to all heirs. This seems to be the import of all the authorities; but any further limitation or postponement of the heir's liability would seem to be unwarranted by the terms of the statute, and contrary to its intention.

The defender is not an heir of a more limited character asking to have the heir-general discussed. He is himself the heir-general of line and of conquest, though unentered, and only liable under the statute. He seeks to have the trustees discussed, on the ground that they are disponees and executors,

Page: 64↓

and, as such, represent the debtor. But there is no right of discussion known to the law as between heir and executor, or heir and gratuitous disponee, which can be pleaded against the creditor demanding payment of his debt from an heir who is undoubtedly liable for it; and, therefore, there is no principle in law for such a limitation of the statutory passive title as the defender contends for. It cannot be determined in this action, or between the present parties, whether the defender has any, or what, claim of relief against the trustees.”

Beveridge reclaimed.