(1713) Robertson 61
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Forbes, 4 & 23 July, 1712.
In a question with regard to funeral expences, and expences of confirmation, the House of Peers haring reversed a judgment of lis finita and found that the assignee of an executrix might insist for these claims, it was still competent to plead prescription thereto.
Subject_Funeral Charges. Prescription. —
The accounts paid by the said assignee, without the 3 years were prescribed where she herself was not contractor, but where she was contractor did not prescribe.
The Expences of confirmation though not especially conveyed to the said assignee, but paid by her, are found to exhaust the executry.
Subject_Debitor non præsumitur donare. —
By marriage contract a wife is provided to the houshold furniture, the husband afterwards grants her a bond and the liferent of a house is settled upon her, these may fulfill as separate and distinct rights.
After determination given in the former appeal (No. 11 of this collection), the parties returned to the Court of Session, and the appellants claimed the whole funeral expences, and charges of confirmation; and insisted that in consequence of the judgment of the House of Peers, no objection thereto could now be stirred on the part of the respondent. The latter contended, on the other hand, that objections were still competent; and insisted
In the mean time another point had arisen in this cause. By the marriage contract, in the former appeal mentioned, between Sir William Hamilton and the appellant Ann, the latter accepted of the liferent, provision thereby provided to her in full satisfaction of all legal claims, “except the whole houshold plenishing that should happen to be in their dwelling-houses, the time of his decease, which houshold plenishing, heirship moveables included, in case she survived him, he thereby disponed to her free of all debts whatsoever.” At a subsequent period Sir William executed in favour of the appellant Ann, the bond for 7000 l. in the former appeal mentioned; and having afterwards purchased a house in Edinburgh, Sir William provided the liferent thereof to her after his decease.
The respondent brought an action before the Court of Session, against the appellants, for reduction of the decree, in the former appeal mentioned, which had been pronounced of consent of parties and extracted in September 1710, on the ground of minority and lesson, as his curator had omitted to ask allowance for the value of Sir William Hamilton's houshold furniture, intromitted with by the appellant Ann; and also of the rent of the house in Edinburgh, which she possessed in virtue of the said right of liferent, both which he contended ought to have been deducted from the 7000 l. bond. After sundry proceedings in this action of reduction, the Court on the 4th of July 1712, “found that the 7000 l. bond granted by the said Sir William Hamilton to the defender Ann, and the liferent of the house also provided to her, cannot subsist as separate and distinct rights; and also found that the defender Ann could not claim the houshold plenishing without allowing the value thereof in part payment of the 7000 l. bond, and therefore sustained the reasons of reduction as to these two articles.”
Entered, April 10, 1713.
The appeal was brought from “several decrees, sentences, and interlocutory orders of the Lords of Council and Session, of the 4th and 23d July 1712”.
On the point of Funeral Expences, and Charges of Confirmation.
Heads of the Argument of the Appellants.
This point is not now open, for the House of Lords having reversed the judgment of lis finita, and allowed the appellants “ to insist” for the funeral charges and expences of confirmation, their right to the same was thereby established, and the Court of Session had only to consider what the appellant Ann had paid on these accounts.
With regard to the charges of confirmation, as the executrix assigned her whole right of administration to the appellant Ann, there was no occasion for any particular assignation of these charges. And the appellant Ann was taken, bound to indemnify the executrix against these charges, and has actually paid the same.
Heads of the Respondent's Argument.
Though it be determined by the judgment of the House of Lords, that the appellant should be at liberty to “ insist” for the funeral charges, and charges of confirmation, the respondent was not, nor was intended to be thereby precluded from insisting on any thing he should be advised as a bar to this demand.
Though the executrix herself might have deducted the expences of confirmation from the personal estate, yet the appellant Ann has no pretence to do so; because as she is not executrix herself, and did not pay out any part of these expences, so she has no manner of right to them from the executrix who paid them; and she neither was nor could be assigned to the office of executrix, but only to the personal estate.
In the Reduction.—Heads of the Argument of the Appellants.
The property in the houshold furniture accrued to the appellant Ann, in virtue of the contract of marriage, at the very moment of her late husband's decease, and this property could not be supposed to be taken from her by the bond for 7000 l. which did not become payable, or bear interest, till about five months after his decease, for he died in December, and the bond did not fall due till the Whitsunday following. They must therefore be understood as different rights, since they were to take effect at different periods of time. And the declaration in the bond that it should be effectual for forcing his heirs, &c. to pay the same, or else that it should affect his whole estate real and personal, could only be intended of such estate as fell to them, of which the houshold furniture formed no part.
With regard to the liferent of the house, though the court had sustained the bond to be in satisfaction of the annuity, (which the appellants acquiesced in, knowing that the estate was not sufficient to answer both demands) yet it could not be reasonably supposed that this bond should be extinguished by the subsequent grant of the life-rent of the house. Though in the point of the annuity and posterior bond, the Court held that the annuity was satisfied by the bond, upon the ground that debitor non præsumitur donare,
Heads of the Respondent's Argument.
It is a maxim in the law of Scotland, that debitor non præsumitur donare, and consequently whatever the appellant Ann enjoys and possesses of Sir William Hamilton's estate by whatever title must be imputed in payment and satisfaction of the said 7000 l. bond pro tanto. When the action, therefore, was brought for the annuity of 200 l. Secured to the appellant by the marriage contract, the Court found that the bond was to be considered in satisfaction of that annuity. The respondent does not at all question the right of t the appellant Ann to the houshold furniture by the contract of marriage; but he insists, that if she betake herself to the bond, she cannot touch any part of Sir William Hamilton's estate by whatever title, but what must be imputed in satisfaction of the bond pro tanto, for the bond and the provisions in the contract of marriage, cannot subsist as separate deeds. And this appears plainly to have been the intention of the grantor, since by an express clause in the bond, he declares, that it should affect his whole estate, real and personal. Nor does the grant by the contract of marriage transmit the property in the furniture immediately, but it must have been confirmed, given up in the inventory, and was subjected to the payment of the husband's debts, which never was disputed.
Nor is it of moment to urge that the life-rent of the house being granted after the bond, the same could not be in satisfaction of that life-rent. For by the law of Scotland a bond by a husband to his wife is looked upon only as a legacy or testamentary deed, and is interpreted to be only dated from the death of the grantor, and consequently this bond must be looked upon as posterior in date to the deed giving the appellant Ann the life-rent of the house.
Judgment, 12 June 1713.
After hearing counsel, It is ordered and adjudged, as to such part of the said decree or interlocutory sentence of the 23d of July, complained of in the said appeal, whereby the said Lords of Council and Session found, that notwithstanding the decree and judgment of this house, it was still competent to the respondent to propose prescription,” and found, that the accounts of the funeral charges paid without the three years were prescribed, where the appellant Ann was not contractor, but where the was contractor, were not prescribed,” that the same be so far affirmed: but as to such part of the said decree or interlocutory sentence of the said 23d
Counsel: For Appellants,
For Respondent, Rob. Raymond. J. Pratt.
The judgment of the Court of Session on the point of the maxim debitor non præsumitur donare, though here reversed, is stated as an existing case in the Dictionary of Decisions, vol. II. voce presumption, p. 145. and in Erskine, B. 3. Tit. 3. §93.