[1761] Mor 5436
Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. I. Nature and Distinctions of each.
Date: Sir John Stewart of Grandtully
v.
Executors of Sir George Stewart
25 June 1761
Case No.No 11.
If the possessor of an entailed estate sells the woods upon the estate, and dies before the whole is cut down, the price of that part of the wood which was cut before his death goes to his executor; but the price of that part which remained uncut goes to the next heir of entail.
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By contract, dated October 1758, Sir George Stewart, proprietor of the entailed estate of Grandtully, sold to Robert Stewart, &c. the trees growing on his wood of Cransie, for the price of 4205 merks, payable to Sir George, his heirs, executors, or assignees, at Whitsunday 1760. The purchaser became bound to commence cutting the 1st of May 1759, and to finish the whole the 1st of September 1760.
Sir George having died in November 1759, after part of the wood was cut, the question occurred, Whether the price belonged to his executors, or to his heir of entail? It was agreed, that the entail could not enter into this question. A contract of sale of growing wood is none of the deeds prohibited by this entail, or by any entail; and is therefore effectual against an heir of entail as much as against any heir. This point being adjusted, it was urged for the executor, that the price here being a moveable subject, belongs to the executor, even where the subject sold is heritable; witness a minute of sale of land, the price goes to the vender's executor though the land goes to the purchaser's heir. 2do, The executor at least ought to be entitled to that proportion of the price which corresponds to the trees actually cut during Sir George's life. For these trees became moveable, and the executors ought either to be entitled to these trees, or to their price as a surrogatum.
It was pleaded for the heir, That, by the law of Scotland, no subjects can fall under confirmation, but moveables that belonged to the deceased in property, including debts payable to him during his life, which for that reason are understood to be money in his pocket. Hence it is that a conditional obligation not purified during the life of the obligee goes to his heir, and not to his executor; and hence it is that an obligation having a tractum futuri temporis goes the same way. In short an executor has not a permanent office: He is appointed to levy what debts were due to the predecessor when he died, and he has no commission to wait for debts that shall become due. That rents, though becoming due after the proprietor's death, accrue to his executor, is not properly an exception. For none accrue to him but what are understood by law to be due before the predecessor's death, though the term of payment be postponed
by paction. Nor is it any objection that the price of land contained in a minute of sale has been adjudged to the vender's executor, though it is incumbent upon his heir to grant a disposition of the land. For this only was found where the term of performance is past before the vender's death. The Court would be of a different opinion where the term of payment is after the vender's death. And the same ought to hold in the present case, where the vender died in November 1759, and the price of the wood was not taken payable till the Whitsunday thereafter. “Found, That a share of the price, corresponding to the trees cut before Sir George's death, belongs to his executors, and the remainder to Sir John Stewart his heir.”
I cannot approve of the first branch of this interlocutor. For though the sum decerned to the executor was the price of a moveable subject; yet the price of a moveable subject payable after the vender's death ought not to go to his executor, more than the price of an heritable subject payable before his death ought to go to his heir.
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