The disposition must flow from the father. - The disponee must be apparent heir in the subject. - Effect of the disponee dying before his father. - Disposition in trust for behoof of the apparent heir. - What must be the nature of the subject disponed to infer the passive title? - Acceptance of the disposition sufficient. - Bonds disponed to the heir will be presumed to have been heritable, in order to infer the passive title.
Mercer v. Scotland
Date: 6 June 1745 Case No. No 119.
In an action on the passive titles, it was insisted for the pursuer, that the defender was universally liable upon the passive title of heir served of provision in general, virtute dispositionis from his uncle of his whole estate, heritable and moveable, that should pertain to him at his death. Alleged for the defender, that his service had proceeded from mistake, and was inept, as there was nothing in the defunct, by virtue of that disposition, to be carried by a service; and that the only proper method to denude the defunct of the fee, was by an action against his heir to denude; at least, as the service was only as heir of provision, it could at most subject the defender provisione tenus. The Lords found the defender not universally liable, but only to the value of the subjects disponed.
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It is an established point, that clauses burdening with debts, when in dispositions to particular subjects, are understood as intended by the granter only for the security of creditors, and not to subject the disponee ultra valorem; but whether such clauses in dispositions omnium bonorum did not admit a different consideration was the question in this case.
Adam Mercer, writer in Edinburgh, by his disposition in 1732, “assigned and disponed to Mary Graham, his spouse, in liferent, and to the children procreated of to be procreated between them, whom failing, to his children of any other marriage in fee, whom failing, to Elizabeth Mercer his sister (passing by James Mercer his brother and heir at law) and the lawful issue of her body, whom failing, &c. all and sundry debts owing to him, heritable or moveable, and all and sundry goods, gear, and every other thing whatsoever that should pertain to him at his death, with this provision and declaration, that the right, and every person who should claim thereby, should be burdened with the payment of all his just and lawful debts, and reserving a power to alter at any time in his life.”
Adam Mercer having died in the year 1740 without issue, Andrew Scotland, the only child of Elizabeth, who had predeceased her brother Adam, confirmed himself executor-creditor by the foresaid disposition; and there being a debt due to Adam, secured by infeftment, Andrew Scotland obtained a decree against James Mercer his brother and heir at law, to make up titles and denude thereof in his favour, as having right thereto by the disposition, and thereon led an adjudication; he likewise served himself heir of provision in general to Adam Mercer his uncle, in virtue of the said disposition.
In a process at the instance of Laurence Mercer, son to Sir Laurence Mercer of Aldie, for a debt due to him by Adam the defunct against Scotland upon the passive titles, two questions occurred, 1mo, Whether the defender was liable universally as heir served, or only provisione tenus; as to which vide of this date inter eosdem, infra; 2do, Whether or not he was universally liable upon the clause burdening him with the payment of the disponer's debts.
It was for the pursuer alleged, That although such burdens in dispositions to particular subjects were never otherways understood than as only intended for the security of creditors, yet universal conveyances of a man's whole estate, heritable and moveable, were truly destinations of succession, the acceptance whereof has been always held to infer an universal passive title, even though not containing burdening clauses, and much more so when there was such a burdening clause as was in this case; that were it otherways where the universitas bonorum is disponed, it would be impossible for creditors to ascertain the value.
Notwithstanding this, as the defender was not alioqui successurus, the Lords “found him not universally liable, but only to the value of the subjects disponed.”
1745. June 6.—In the case stated of this date inter eosdem, supra, it being insisted on for Laurence Mercer the pursuer, That Andrew Scotland the defender was universally liable upon the passive title of heir served of provision in general, virtute dispositionis from Adam Mercer his uncle of his whole estate, heritable and moveable, that should pertain to him at his death; it was alleged for the defender, That his service had proceeded from mistake, and was truly erroneous and inept, as there was nothing in Adam the defunct by virtue of that disposition, to be carried by a service; and that the only proper method to denude Adam the defunct of the fee, was by an action against his heir to denude; at least, 2do, As the service was only as heir of provision, it could at most subject the defender provisione tenus.
Answered for the pursuer, That the service was no less regular, than if Adam Mercer had first instituted himself, which was said, wherever it was done, to be an unmeaning thing, as he could take nothing by it that was not already in him; for that in the one case as well as in the other, a disposition to an universitas bonorum was always considered as a destination of succession. The cases of Dundonald, No 3. p. 1274, and Annandale, (see Appendix), were mentioned as instances, where titles had been made up by service in like cases with the present; and it was said, that although the service, as heir of provision in a particulur subject, did only subject the heir in valorem, yet as such dispositions omnium bonorum are considered as destinations of succession, it is a consequence that the service subjects universally.
Replied for the defender, That though it may be true that instances may have been of such services, as where there is no hazard by the representation, lawyers are ready to advise every method they can think of, valeat quantum, which may have been the case of the instances mentioned; yet it was said, there was no instance of any judgment upon the question, Whether a service to a person in virtue of a disposition which gave nothing to the disponer, was a proper title? and much less of any judgment subjecting the person so served to an universal passive title.
The Lords, without distinguishing the two points, “Found the defender not universally liable, but only to the value of the subjects disponed.”
Fol. Dic. v. 4. p. 44. Kilkerran, (Clause.) No 4 . p. 121; and No 6. p. 370, (Passive Title.)*** D. Falconer reports this case.
1745. June 5.— Adam Mercer, writer in Edinburgh, made a general disposition of all he should have at his death to his wife, if she should survive him, in liferent, and to the children of the marriage, in fee; which failing, to his children of any other marriage; which failing, to Elisabeth Mercer, his sistergerman, and to the lawful issue of her body; “With this special provision and declaration, that that right, and all and every person or persons who should claim any benefit thereby, either of liferent or of fee, should be burdened with the payment, and the hail debts and sums of money that should be due, addebted, and resting to him at the time of his decease, and every thing else that should then pertain and belong to him, should be burdened with the payment of all his just and lawful debts.”
Andrew Scotland, at Powmiln of Aldie, Mr Mercer's nephew by his sister, was confirmed executor on this disposition, and also pursued James Mercer, the defunct's brother and heir at law, to make up titles, and denude of an heritable debt, and thereupon led an adjudication; but, before extracting the decreet, he served himself heir of provision; and the retour bears, “That he was hæres provisionis secundum dispositionem totorum et singulorum debitorum, pecuniæ summarum, aliorumque bonorum,” &c.
Laurence Mercer of Aldie pursued Mr Scotland, as representing his uncle, in which process this question occurred, Whether he was liable universally, or to the value of what he had got by the succession?
Pleaded for Aldie, The defender, abstracting from his service, is liable universally, as having accepted a general disposition, with the burden of debts.
Pleaded for Mr Scotland, He is a singular successor; and universal successors only are universally liable; heirs are fictione juris cadem persona; but this does not apply to disponees, whom it would be hard to subject to an universal representation, as the law has not given them the benefit of entering by way of inventory. By the Roman law, a legatar is not liable in solidum; and there is no difference in this respect betwixt a particular legacy and a legatum omnium bonorum. In the present case, there are several donations to different persons, and a liferent constituted to his wife, all which are bequeathed, subject to his debts, which could not be universally. And, lastly, This case of a disposition omnium bonorum was decided 8th December 1675, Thomsons against the Creditors of Alice Thin, No 141. p. 5939.
Replied for Aldie, Whatever might be the case of a simple disposition omnium bonorum, yet it can never be disputed, that one, with the express burden of debts, must make the accepter universally liable; this is the most favourable of all passive titles, founded on the consent of parties, while the others are either fictions of law, or penalties introduced in favour of creditors. If an executor were named with this provision, he would be liable in solidum, nor could an heir, instituted on these conditions, make use of the benefit of inventory; and the defender, who is confirmed executor, is not to be considered as a legatar, but as an universal successor; and yet it is apprehended, that, even the accepting a legacy under this burden would make him liable.
The case of Alice Thin is involved in many circumstances; and all that was found was, that the accepter of a disposition, with the burden of debts, was not liable universally; but here, by the clause, the person of the accepter is bound.
Pleaded further for Aldie, The defender is served heir of provision; and, consequently, represents the defunct.
Answered, The service was quite improper and erroneous, and can be of no effect, as the disposition was not so much as to the disponer himself in liferent, but directly to the disponees of what he should have at his death; so that the person then called needed no service; the fee of the subjects remained with Mr Mercer, and went to his heir, from whom the disponee behoved to claim them; but there was no fee vested in him by the disposition, and there is nothing to hinder the jus crediti to remain in pendenti; and suppose a land estate to have been left in this manner, the procuratory of resignation would not have been carried by a service.
Replied, Mr Scotland is served heir to his uncle, and by that title has recovered one debt; and it is impossible to say what more he may have intromitted with.
This service was the only proper title, since Mr Mercer never denuded himself of the subjects; he calls his disponees institutes and substitutes, and reserves power to alter; so that the fee remained in him.
The Lords, 11th December 1744, in respect of the general service, found the defender liable in the debt pursued for.
On a reclaiming bill and answers, 23d January 1745, they found him not universally liable, but only to the value of the subject disponed; and 5th June, on bill and answers, adhered.—See Representation.
D. Falconer, v. 1. p. 89.Act. L. Craigie.Alt. Da. Graham.Clerk, Gibson.
