[1769] Mor 14401
Subject_1 SERVICE AND CONFIRMATION.
Subject_2 SECT. V. Whether requisite where the Subject is in the Possession of the Heir or Executor? - Whether the Father's Possession the same with the Childs?
Date: Pringles
v.
Veitch
7 March 1769
Case No.No. 40.
An elder brother intromitting with the effects of the younger on his death, found to have vested in himself a provision with which he was burdened.
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James Pringle of Bridge-heugh disponed his whole effects, heritable and moveable, to his eldest son Alexander, with the burden of 27,000 merks provided to James his second son, who survived the father, but died without issue, minor, and intestate.
Alexander Pringle did not make up titles to his brother, and died unmarried, after executing an universal disposition in favour of Mary Veitch, his mother.
Upon his death, an action was brought by Alexander and Margaret Pringles, first cousins to old Bridge-heugh, who, by the death of the eldest son, had become nearest in kin to the youngest, concluding for payment of his provision, upon the ground that it was in hæreditate jacente of James, and was properly taken up by their confirmation as executors qua nearest in kin to him.
Pleaded in defence: Creditors do not suffer, though the nearest in kin should neglect to confirm. The creditors of the defunct are entitled to confirm executors creditors. The privilege is extended, by the act 1695, Cap. 41. to the creditors of the nearest in kin. And, from the statutes upon this subject, it would appear to have been the intention of the Legislature to leave it in the option of the nearest in kin, whether to confirm or not. Thus, the statute 1690, Cap. 26. in particular, prohibits all charges to confirm, except at the instance of the relict, bairns, nearest of kin, or creditors; from which it may be inferred, that they only are, in the eye of law, considered as interested in the executry; so that confirmation cannot be necessary merely to exclude the claim of an after nearest in kin, who, at the time, had no manner of interest.
Indeed, this idea was early received in the law; for, in a case observed by Haddington, in 1610, Blackburn contra Rig, No. 29. p. 14384. action was refused to a supervening nearest in kin, against a tutor, who had intromitted with the heirship moveables for the behoof of his pupil, the nearest in kin for the time, who died without being confirmed. After decisions have proceeded upon the same principles, as July, 1743, Macwhirter contra Miller, No. 38. p. 14395; 3d February, 1744, Bairds contra Gray, No. 37. p. 14393. 21st December, 1757, Brodie contra Stewart, No. 91. p. 3912. voce Executor. In all these cases, it was found, that possession vested the effects in the nearest of kin, without the necessity of confirmation. It has also been found, that confirmation upon a partial inventory,
vests the dead's part in the nearest of kin, 4th December, 1744, Executors Creditors of Murray Kynnynmound contra Somervil, No. 89. p. 3902. voce Executor. And the whole current of decisions tends to support the defence now pleaded. There is no solid difference in the transmission of moveables properly so called, and debts. The only question, therefore, that remains is, Whether Alexander Pringle actually attained possession of his brother's provision. But as to this there can be little difficulty: he was not only in possession of the document of debt, but, being the debtor in the obligation, he had the money itself in his hands. Had any other person been debtor in the sum, and had payment been made to Alexander, or the security innovated, the right would have been fully vested in him. And the law can never require such a piece of mummery, as a simulate payment, and a nominal discharge granted by the nearest in kin to himself.
Answered: The whole series of our statutes proceeds upon the idea of the necessity of confirmation, which is supposed even in those which were purposely framed for the advantage of the nearest in kin, as 1540, c. 120. 1617, c. 14. 1690, c. 26. and more particulary in those which relate to the subject of quots of testaments, as 1641, c. 61. 1661, c. 28. 1669, c. 19. 1701, c. 14. Had it been intended to dispense with confirmations altogether, the legislature would not have been at the trouble of regulating them by so many anxious enactments. Indeed, in a double view, they are of more consequence at present, than in any former period of our law; the inventories made up, and the caution found in confirmations, is the best security which remains, now that the penalties of vicious intromission are in a great measure abolished. And accordingly, so satisfied was the Court of the necessity of confirmation, that the obtaining a decree dative was found insufficient to vest the effects, where the person who had taken out the edict happened to die before actual confirmation; 24th January, 1745, Carmichaels contra Carmichael, No. 12. p. 9267. voce Nearest of Kin.
In all the cases referred to by the defender, there was some overt act declaratory of the intention of the nearest in kin to take up the succession; as, apprehending the possession of moveables, exacting payment, or taking a bond of corroboration. In the present case, there was no act of that kind done by Alexander Pringle; and it is contrary to every idea of law, to suppose that he could have become heir in mobilibus to his brother, without taking any step to indicate that such was his intention. This will appear the more obvious, if it be considered, that whatever has the effect of vesting the moveables, cannot but have the corresponding effect of inferring an universal passive title; so that, however great the debts of the defunct may be, the nearest of kin might be subjected to them without his knowledge, nay, contrary to his intention.
“The Lords repelled the defences, and decerned.”
Afterwards, the defender insisted for a proof, that Alexander Pringle had intromitted with the whole moveables of his brother, and thereby incurred an universal representation; and a proof having been allowed, it appeared from the
evidence, that he actually intromitted with a horse and riding-furniture, which had belonged to James, with his books, linens, and other clothes, being the whole effects he was master of, and that he had paid any debts which he owed. “The Lords, having advised the testimonies of the witnesses adduced, in consequence of the former interlocutor, whereby it appears, that Alexander Pringle had an universal intromission with his brother's effects, sustain the defence, and assoilzie the defender.”
Act. Macqueen, Solicitor-Dundas. Alt. Lockhart. Clerk, Pringle.
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