Subject_1 SERVICE AND CONFIRMATION. Subject_2 SECT. III.
General Disponee.
Robert Richardson v. Archibald Shiells
Date: 19 February 1784 Case No. No. 20.
The property established by the possession of a general disponee unconfirmed; is limited to the subjects possessed.
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Alexander Orr had become bound to dispone certain lands, but died before fulfilling that obligation, though after a bond had been granted to him for the price. His eldest son, who was his universal disponee, possessed the lands for some years. He then obtained a sequestration, in terms of the statute 1772, of the effects belonging to himself and to his father.
Afterwards Archibald Shiells, a creditor of the father, expede a confirmation, as executor-creditor, and gave up in inventory the bond above mentioned; when a competition ensued between him and Mr. Richardson, the factor under the sequestration.
Pleaded for Mr. Richardson: It is no longer an invariable rule, that the transmission of moveable effects from the dead to the living is perfected by confirmation alone. Either a partial confirmation, 24th January, 1745, Creditors of Mr. Hugh Murray, No. 89. p. 3202.; the possession of moveables, 3d February, 1744, Children of Baird contra Gray, No. 37. p. 14393.; the renewal of bonds, or other vouchers of debt due to the predecessor, 10th February, 1751, Spence contra The Creditors of Alcorn, No. 37. p. 14399.; the receiving payments or granting discharges; or, in a word, any act whereby the successors in the moveable estate, whether nearest in kin, or general disponees, signify a resolution to undertake a representation of the deceased, 10th March, 1769, Pringle contra Veitch, infra, h. t. is effectual to establish in them the whole executry-funds. By the general disposition, therefore, followed by possession of the lands for which the bond was granted, the sums in question were completely transferred to the general disponee, and fell of consequence under the sequestration of his effects.
Answered for the Executor-creditor: The nearest in kin, or a general disponee, may indeed, without confirmation, acquire the property of particular subjects, in consequence of attaining possession; and it may therefore be here admitted, that after payment, or a renewal of the bond in favour of the son, the creditors of the father could no longer attach it as in bonis of their debtor. This mode of transference, however, is not, like that by confirmation, universal in its nature; the act of possession being at the same time the foundation of the acquisition and the measure of its extent. The fund in dispute therefore must still be viewed as the property of the defunct; for the possession of the lands, which could not be attained in virtue of a disposition to the moveable estate, is altogether out of the question.
Mr. Richardson likewise endeavoured to found an argument on the terms of the sequestration, which related as well to the effects of Alexander Orr, the father, as to those of the son. But the Court were clearly of opinion, that a sequestration, in pursuance of the bankrupt statutes, was an inept diligence for attaching the estate of a person deceased. It was likewise observed, that in order to bring this debt under the sequestration, the factor, as in the right of Alexander Orr, junior, should have used a confirmation qua disponee, or should have obtained a corroborative obligation from the debtor.
The Lords “preferred Archibald Shiells, in virtue of his confirmation.”
Lord Ordinary, Kennet.For Mr. Richardson, Lord Advocate Campbell, Wight.For Archibald Shiells, Baillie, Honyman.Clerk, Home.
Fol. Dic. v. 4. p. 268. Fac. Coll. No. 147. p. 229.
