Baron Kennedy v. Agnes Murray Kinnynmound, and Mr Gilbert Elliot her Husband.
Date: 28 July 1748 Case No. No. 21.
How far the heirs of tailzie liable for the entailer's debts?
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Sir Alexander Murray of Melgund married Grizel Kinnynmound, heiress of Kinnynmound, which she conveyed to him, and he infeft her in a liferent annuity upliftable out of both estates.
He afterwards tailzied the said estates by a dispossion to himself in liferent, and Alexander his son in fee, and failing him and the heirs of his body, to Mr. Hugh Dalrymple, advocate, his own brother uterine, “under the burden of the said liferent annuity;” and also with the burden of the sums contained in an heritable bond to Sir David Dalrymple advocate, (to wit, debts paid by him on No, 21. the estate of Kinnynmound) which last sums were declared not only “to really burden and affect the said estate, but likewise that the heirs of tailzie should be personally bound to make payment thereof in terms of the bond.”
After Sir Alexander's death, his relict married to Thomas Kennedy, one of the Barons of Exchequer; and a very large arrear was incurred of her jointure, the estate being in the mean time successively possessed by Sir Alexander Murray younger, Mr. Hugh Murray (formerly Dalrymple), and Agnes Murray his daughter married to Mr. Gilbert Elliot, advocate; but it was alledged by Baron Kennedy, the contraction was so far from being a prejudice to the present possessors of the estate, that by means of his forbearance it had been disburdened of a larger sum bearing interest, which the annuities, till adjudged for, did not.
Mr. Hugh Murray's creditors being confirmed executors to him, and Baron Kennedy claiming as such on the arrears then incurred, it was objected to him by the other creditors, that Mr. Murray was not personally liable, but they were a burden on the estate; whereupon it was found, 23d June 1743, “that he as heir of entail to Sir Alexander Murray, was personally liable for the liferent-annuity secured upon the entailed estate, and therefore the Baron ought to be ranked as a creditor on the executry; but in so far as he drew out thereof, he behoved to assign the arrears in favour of the other moveable creditors, to the end that they might recur therefor against the heritable estate, reserving the heir's defences.”
Baron Kennedy brought an action for payment against Agnes Murray the heir of tailzie, and obtained decreet, and thereupon adjudged; of which she, with her husband, offered a bill of suspension, for that an heir of tailzie was not personally liable to the tailzier's debts, but only to the extent of their intromissions with the rents of the subject; an heir of provision or tailzie, who was a singular successor, could not be further liable than to the extent he was benefited, or than he was bound to the quality of his right; and by this settlement they were not made personally liable for the annuities, though they expressly were for another debt.
Answered, Sir Alexander Murray younger became bound Præceptione hereditatis for his father's debts; and though the succeeding heirs do not represent him in his extraneous debts, yet they do in those he was liable in, as being debts of the tailzier.
2dly, The present question is concerning the suspension of an adjudication founded on a personal decreet for payment; now supposing the defender could be reponed against the decreet, yet as it is granted, the arrears are a burden on the estate, and may be made effectual thereon by adjudication proceeding, as the suspenders plead, on a declaratory decreet; so the present decreet ought to be sustained to that effect, the personal conclusion being only suspended; in like manner as when an heir who has neglected to renounce is reponed, the adjudication is sustained, as on a decreet of cognition; for the charger ought not to suffer the prejudice of losing his annual-rents since the date of his adjudication, because the suspender did not reclaim against the Lord Ordinary's interlocutor finding her liable, and he is willing to consent to the suspension of further diligence.
Second reason of suspension, adjudication is pronounced for an year's annuity, more than is contained in the decreet of constitution, and for a term's more than in the summons of adjudication.
Answered, The decreet is for payment of the sum then due, and for what should become due in time to come, and was taken for what was resting at the Martinmas preceeding. The adjudication was raised before next Martinmas, for that sum, and for what should fall due; but one year having been paid, the decreet, which was not pronounced till after Martinmas, was taken making the accumulation at that term, when the sum happened to be the same with that in the constitution.
The suspender being minor, the Lords did not lay weight on the res judicata.
The Lords found the adjudication was sufficiently supported by the decreet of constitution, and, of consent of the charger, suspended the execution of all diligence against the persons of the suspenders, and against any estate belonging to them, other than the tailzied estate of Melgum and Kinnynmound.
