Tho' a legacy falls by the predecease of the legatee, yet, if heirs are named, the heir takes it upon his survivance; and though he die afterwards without making up titles, the legacy will fall to his nearest in kin, and not to those of the first legatee.
Click here to view a pdf copy of this documet : PDF Copy
John Chalmers of Corsehill disponed his estate to John Chalmers writer in Edinburgh, with the burden of a legacy of L. 100 Scots to Isobel Inglis, her heirs, executors, or assignees. Isobel died before the testator; but left a son, Richard Miller, who survived the testator, but died without making up any titles to the legacy.
After his death, David Miller, his father, confirmed himself executor to Richard, and gave up this legacy in the inventory. Janet Inglis, sister to Isobel, having confirmed herself executrix to her qua nearest of kin, brought a process against John Chalmers for payment of this legacy; and Chalmers raised a multiple-poinding.
Pleaded for Janet Inglis, As Richard Miller died without making up any titles, the legacy was never so vested in him as that it could transmit to his executor. David Miller's confirmation, therefore, as nearest of kin to his son, cannot convey to him what did not belong to his son; but the legacy must go to Isobel Inglis's executors, by confirmation or otherwise. Had this legacy been left to Isobel Inglis, and failing of her, to her son Richard nominatim; upon Richard's surviving his mother, the legacy would have gone to his nearest of kin, confirming executor to him. But the legacy is left to Isobel Inglis, her heirs, executors, and assignees; and therefore a title must be made up to it by confirmation, in order to vest the right in the executor confirming, so as to transmit the right to his executors; and if the nearest of kin die without making up his titles by confirmation, he can transmit no right to his nearest of kin, but that debt must be taken up, as is done in this case, by the nearest of kin who shall confirm executor to Isobel Inglis. Her son, Richard, never was her executor; but Janet Inglis is confirmed in that office, and therefore must be entitled to the legacy in question.
Pleaded for Miller, As Isobel Inglis died before the testator, the legacy never belonged to her, and therefore cannot be taken up by confirmation, as in bonis of her. It is left to her, and to her. heirs and executors; failing of her, therefore, they come in as legatees or conditional institutes, and must take in their own right, and not through her by confirmation. Agreeable to this doctrine, Voet gives his opinion, in the tit. De mortis causa donationibus, § 7., where he expressly considers the heirs of the first legatee as being themselves also legatees. A confirmation to Isobel, therefore, would be entirely inept, and could be of no other use, but to demonstrate, that Richard was nearest of kin and executor to his mother. But neither a service as heir, nor confirmation as executor, are required in the law of Scotland, ad factum demonstrandum, where no subject is to be carried by them. Thus it was expressly decided, Houston of Johnston against Nicolson of Carnoch, 28th January 1756, No 18. p. 5249.
As therefore this legacy never belonged to Isobel Inglis, because she did not survive the testator, no confirmation to her was necessary. Richard Miller had right to this legacy as legatee; and there is no doubt, that where a legacy is due, it transmits, though the legatee die before confirmation, in the same manner as an executor who is appointed universal legatee, though dying before confirmation, transmits his right to his executors.
“The Lords found, That the legacy in question having been left to Isobel Inglis, her heirs, executors, or assignees, did not become caduciary by her predeceasing the testator; but found, That the same did fall and belong to Richard Miller, her son, as conditional institute; and found, That the legacy is now effectually carried by the confirmation of David Miller, as executor to the said Richard his son; and therefore preferred the said David Miller, and decerned; and found him entitled to the expenses of the extract.”
Act. Arch. Murray.Alt. Wa. Stuart.Clerk, Justice.
Fol. Dic. v. 3. p. 375. Fac. Col. No 234. p. 428.*** Lord Kames reports this case:
John Chalmers disponed his estate to his nephew, with the burden of certain legacies, one in particular of 150 merks to Isobel Inglis, wife of David Miller, her heirs, executors, or assignees, payable year and day after his death, with interest after the term of payment. Isobel died before the testator, leaving a son Richard Miller, who survived the testator, but died without making up any title to the legacy. His father David Miller, having confirmed himself executor to his son, and having inserted the said legacy in the inventory, brought a process for payment of the said legacy. The nephew of John Chalmers, who, as said above, was burdened with the legacy, objected, That, as Isobel predeceased the testator, the legacy was never due. It was found, ‘That the legacy having been made to Isobel, her heirs, executors, or assignees, did not fall by her predeceasing the testator, but became due to Richard Miller her son as a conditional institute, and consequently to David Miller, confirmed executor to his son.’
