Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Mrs Murray of Kinninmond
v.
-

1748. July. —.

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[Elch. No. 34, Tailyie; Falconer, No. 282.]

In this case my Lord Arniston gave it as his opinion that an heir of entail entered, was not personally liable for the tailyier’s debt, because it would be an intolerable hardship if he should be subjected to debts which he cannot pay out of the estate, or that his heir should be burthened with them when perhaps the tailyied estate goes to a quite different heir. The estate no doubt will be affectable for such debts, and the creditors may adjudge it,—but that may be though nobody be personally liable, as was decided in the case of Murray against Inglis, February 14th 1740. But Lord Elchies and the other Lords were of opinion that an heir of entail, like any other heir, was personally liable, and universally too, (unless he took the benefit of the inventary,) for the tailyier’s debts, in the same manner as any other heir for the debts of his predecessor; and if thereby he is laid under any hardship, sibi imputet,—he ought to have foreseen that before he entered. Besides, there is a way by which he may be sure not to be a loser; and that is by taking an assignation to the debts, when he pays them, in the name of a trustee, who thereupon adjudges the estate. But what if the creditors will not assign but only discharge? It is answered, the Lords in such a case would force them to assign.