Acts of the Heir proceeding from his Connection with the Predecessor.
Samuel Brown v. Peter Blackburn
Date: 19 November 1782 Case No. No 72.
How far a residuary legatee, accepting a sum of money for a conveyance of his right, is liable to that extent for the testator's moveable debts.
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By the death of Dr Brown of Jamaica, his personal estate in that island, after payment of his debts and certain legacies, devolved to Mr Blackburn, in the character of residuary legatee, his real estate there, to Patrick Brown, as his heir at law; and a debt due to him, which was secured by infeftment in Scotland, to Samuel Brown, as his heir of conquest.
A transaction took place between Mr Blackburn, the residuary legatee, and Patrick Brown, the heir in Jamaica; by which, for the sum of L. 1000 Sterling, the former sold to the latter his interest in the personal estate.
It however soon appeared, that the subjects falling under this transaction were inadequate to the payment of the Doctor's debts; and a personal creditor of his having attached in Scotland Samuel Brown's share of the succession, the latter, for his relief, pursued Mr Blackburn, as having intromitted with the effects primarily liable for debts of that sort. In support of this action, the pursuer
Pleaded; By the acceptance of a considerable sum as a surrogatum in place of the whole free executry, the defender must be understood to have intromitted to that extent with the moveable estate of the defunct; otherwise, it would be in the power of the executors, or residuary legatees, by agreements of this kind, in defraud of creditors, to secure the whole funds to themselves.
Answered; Had the residuary legatee, by the interposition of a third party, intromitted with the moveable funds of the deceased, his situation must in all respects have been the same as if he had taken effects to the same extent directly under the will. But here there were no effects to be the subject of intromission. The bargain, therefore, concerning the eventual profits arising from the bequest in favour of the defender, not having in the least diminished those funds out of which the pursuer could hope for relief, it affords no foundation for the present claim. July 5. 1666, Scots against Affleck, No 50. p. 9694.
The Lords sustained the defences. See No 21. p. 5228.
Lord Reporter, Hailes.Act. Rae.Alt. Armstrong, Ilay Campbell, Crosbie.Clerk, Home.
Fol. Dic. v. 4 . p. 43. Fac. Col. No 66. p. 104.
