Scottish Court of Session Decisions

Subject_1 EXECUTOR.
Subject_2 SECT. IX.

In how far, and by what means, the executor is constituted proprietor.

Elisabeth Brodie, Relict of William Stuart Merchant in Edinburgh,
v.
Archibald Stuart Merchant in Edinburgh

Date: 21 December 1757
Case No. No 91.

Possession of the moveables by the nearest of kin, vests the right without confirmation.

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Margaret Charteris, relict of the deceased Daniel Stuart writer in Edinburgh, kept a shop in Edinburgh, and dealt to a considerable extent. She died intestate upon the 13th of April 1748, leaving issue four children, William Stuart, the pursuer's husband, who was then abroad in the East Indies; Archibald, the defender; and Alexander and Margaret Stuarts. A few days after her death, particular inventories of the whole effects and debts belonging to her, amounting to upwards of L. 1500 Sterling, were made up by Archibald Stuart the defender, her second son; who took upon him the management and disposal of these funds, for the behoof of all concerned.

In September 1748, Archibald moved an edict for being decerned executor qua nearest in kin to his mother; and was accordingly decerned; but before any confirmation could be got expede, and the active title thereby established in his person, the pursuer Elisabeth Brodie, as factrix to her husband William Stuart, the eldest son, who was then supposed to be alive, did, upon the 5th of January 1749, prefer a petition, in name of the said William Stuart, to the Commissaries of Edinburgh, insisting, That the said William Stuart might be conjoined with Archibald, the second son, in the confirmation; which was accordingly ordered by interlocutor 25th January 1749. On the 8th of March thereafter, Archibald, with a view to save expenses, expede a confirmation for the sum of L. 22 Sterling only, being a small debt due to the defunct.

After William Stuart was thus conjoined in the office, Archibald entered into a transaction with Elisabeth Brodie; the result of which was, that Archibald, upon the 23d of February 1749, granted a declaration or obligation to the pursuer, as factrix for her husband; which contains a recital of the facts before set forth; and then proceeds in these terms:

“And I being now satisfied of my brother's right, which I never intended to disappoint, but only, by not confirming the whole subjects which belonged to the said Margaret Charteris, to save charges as much as possible, for the interest of all concerned; and I having this day signed exact duplicates of the inventories above mentioned, which I have herewith delivered to the said Elisabeth Brodie his spouse; I acknowledge and declare, That I have taken the said effects, and grounds of debt, into my custody; and that I am to seek in and recover the said debts for the joint behoof of the said William, and of Alexander and Margaret Stuarts, my brothers and sister; for all of whom I hereby declare, that I hold the said office of executry in trust, as well as for myself; and I oblige me to account for, and to pay to them, and their heirs, &c. their full share of the said executry, in so far as shall be due to each of them, after deducting the debts, and charges of management, in the same way and manner as if all of them had been conjoined in the said office, and had confirmed every particular contained in said inventories.”

Soon after this obligation was granted, accounts were received of William Stuart's death upon the 9th December 1748, in the East Indies; and as it thereby appeared, that William was dead some time before the foresaid application, for his behoof, made to the Commisaries by the pursuer for his being conjoined in the office; and consequently before the above declaration or obligation was granted, upon supposition of his being then alive; the question occurred, What right or benefit accrued to the pursuer, who had been left William's sole executrix, from the said obligation ?

The pursuer having confirmed herself executrix to William, brought an action against Archibald to recover her husband's fourth share of the effects of Margaret Charteris. Archibald raised a multiple-poinding, calling all parties concerned; and the cause being heard before the Lord Justice Clerk Ordinary, his Lordship, on the 27th February 1755, pronounced the following interlocutor: ‘Finds the defender Archibald Stuart must account to the pursuer Elisabeth Brodie, in the right of William-Stuart her husband, for the fourth part of the shop goods, lying money, household-furniture, and other moveables, which were in the possession of the defender's mother at the time of her death, and were intromitted with by the defender; and makes avisandum to the Lords with the other points in debate.’

By this interlocutor, a distinction was made betwixt the bona mobilia which had been in the possession of Margaret Charteris at the time of her death, and afterwards intromitted with by the defender; and the nomina debitorum, or the debts constituted by writ, and standing in the account books of the defunct; which last amounted to upwards of L. 1100 Sterling. The interlocutor was founded upon the authority of the later decisions of the Court, particularly in Macwhirter against Miller, voce Service and Confirmation. It was here held, as in former late cases, that the right to moveables was established in the nearest of kin for the time, by possession, without actual confirmation; and that the defender's obligation, though of date posterior to William's death, ought so far to operate in favour of him, and of his executors, as to entitle the pursuer to William's share of the bona mobilia, notwithstanding that William was dead at the time of said obligation, in respect he was alive at the time when Archibald intromitted with these. The Lord Ordinary's interlocutor, upon this point, was acquiesced in by the parties, and became final.

The other point in this cause, reported to the Court, was, Whether the pursuer had also right to a share of the debts due to the defunct?

Pleaded for the defender, 1mo, It is held by all our lawyers, that confirmation is necessary to vest a right in the nearest of kin to the debts due to a defunct, as being the proper aditio hæreditatis in mobilibus, and the only method known in the law of transmitting such subjects from the dead to the living. The being decerned executor is but an incomplete step towards the making up the title; it is the actual confirmation only which completes it, and serves to transmit the right. This method the law has devised, not only for the benefit of all concerned in the executry itself, to prevent concealments; but more particularly as to the nomina debitorum, in order to secure the debtors, who have an interest to see that proper titles be established, whereby they may pay safely. And as no debtor can be compelled to pay, but upon actual confirmation, this shows clearly, that our law, as to this point, remains firmly established. 2do, With regard to the obligation granted to the defender, it can have no effect, as it proceeds upon an error in substantialibus, viz. upon an erroneous supposition, that William was then alive, and thereby capable of establishing a title to his share of the moveable effects by confirmation; or, which would be tantamount, of acquiring right by the defender's obligation; but as William was dead before that time, and even before the pursuer, as his factrix, made the aforesaid application to the Commissaries for his being conjoined in the office, the obligation was rendered abortive; and as William was then incapable of acquiring any right, matters remained upon the same footing as if no such obligation had been granted.

Answered for the pursuer; To the first; Whatever may have taken place in our ancient law, it is now an established point, founded on reasonable considerations and just principles, That confirmation is not necessary; but that the jus sanguinis vests the full right of moveables in the nearest of kin, and transmits the same to their representatives; 17th December 1729, Shearer contra Wilson, voce Nearest of Kin; 14th November 1744, Macwhirter contra Miller, voce Service and Confirmation. And therefore, as William Stuart, the pursuer's husband, was alive when the above steps were taken by the defender, the whole moveables which had belonged to their deceased mother, having ceased to be in bonis of her, became the property of her children. And notwithstanding William died before the execution of the foresaid obligation, and although there was a defect in the incompleted title of the nearest of kin; yet the defender having moved an edict, and being decerned executor on the said 28th September, upon which confirmation was expede 8th March thereafter, the same was sufficient to supply any defect of title, and did accresce to William, and the other nearest of kin. To the second; The inductive cause set forth in the defender's obligation, is, “That he was satisfied with his brother's right, which he never intended to disappoint;” and therefore, “he obliges himself to account for and pay to his brothers and sister, “their heirs, executors, or assignees,” their full share of the said executry, in the same way and manner as if they had been all conjoined with him in the said office,” &c. As therefore the defender held this office of executry in trust, for the behoof of all concerned, and who had acquired a right thereto upon the death of their mother, his after confirmation must, in terms of his obligation, accresce to the pursuer in right of William, who was alive at the time the defender was decerned executor by the Commissaries; nor can he now be allowed to counteract his own express obligation, which was founded on motives of justice and the principles of law.

‘The Lords found, That by the obligation, dated 23d February 1749, the defender Archibald Stuart was accountable to the pursuer Elisabeth Brodie, as in the right of the deceased William Stuart, the defender's eldest brother, and likewise to Alexander and Margaret Stuarts, the defender's brother and sister, for their proportion of the debts due to Margaret Charteris their mother.’ See No 77. p. 541.

Reporter, Justice-Clerk. Act. Da. Dalrymple. Alt. Lockhart. Clerk, Home. Fac. Col. No 74. p. 124.