What is to be understood by the term “personal re-presentatives” in the clause of a settlement?
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John Stewart, victualler in London, in the year 1769, executed a settlement, leaving his effects in the first instance to his son; failing whom, one half to be given to his wife and her relations, and the other to his brother James, or, in the event of his death, to his personal representatives.
John Stewart died about the year 1776, leaving a widow and one son. His brother James next died; thereafter John's son without issue; and, last of all, his widow; so that the succession to one-half of his effects opened to the personal representatives of his brother James, by the terms of the settlement,
In the year 1795, about four years previous to his death, James Steware executed a testament, by which, upon a narrative of his resolution “to settle his worldly affairs in his own lifetime, so as that all difference among his children, anent the succession to him in his means and effects, after his death, might be prevented, he nominated and appointed John Stewart, his eldest lawful son, to be his sole executor, and universal intromiteer with his whole goods and gear, debts, sums of money, household furniture, and other moveables whatever, that might pertain or be owing to him at the time of his decease, in virtue of bonds, bills, or any other manner of way; together with the vouchers and instructions of the said debts,” &c. “all which the testator thereby left and bequeathed to his son John, with power to give up inventory, confirm testament, and do every thing thereanent that any other executor can, or may do, by law; with and under the burdens, legacies provisions, and reservations therein mentioned.”
John Stewart, tenant in Fianich, the eldest son of James Stewart, conceiving himself to be the sole personal representative of his father, proceeded to take possession of the succession, devolving upon the family by his uncle's settlement. But doubts having arisen whether this succession belonged to him exclusively, or in common with his brothers and sisters, a process of multiple-poinding was brought, in which the elder brother pleaded:
By the term Personal Representatives, according to the law of England, where this settlement was framed, is to be understood those who represent a man after his death, or, in other words, those who succeed to his personal estate, either in terms of his latter will, or by law, if he should die intestate; Jacob's Law Dictionary, vocibus Personal, Representation. Executors are therefore synonymous with personal representatives; and as John Stewart was appointed by his father's settlement his sole executor he is entitled to any legacy devised to his personal representatives.
Answered: The term personal Representatives, includes the whole children of James Stewart, who by law become successors to him in his moveable estate.
An executor is quite different from a representative, being a trustee for the management of the moveable estate of a person deceased, accountable to the creditors, legatees, and representatives of the testator; Act (preamble) 1617, c. 14; Gordon against the Laird of Drum, Dec 21, 1671 No.86.p. 3894; Campbell against Burdon, Dec. 1, 1791, (not reported.) By the law or England, likewise, as illustrated by numerous decisions, representatives are clearly distinguished from executors; 3 William's Reports, 40; Godolphin Orph. Leg. 259; Act 22. et 23. Car. II, C. 10; 1. Jac. II. C. 17. § 7; Green versus Howard, Hilary Term 1779, Pickering versus Stamford, August 2, 1797, vesey junior Reports. Farther, the settlement of James Stewart can only be understood to dispose of what was his own property; but the funds here in media never were vested in him, and did not devolve upon his family till many years after his death. The terms of his will likewise shew, that he was disposing merely of his own effects, and had no contemplation of this eventual legacy. See Provision to Heirs and Children, Sect, 5. et seq.
The Lord Ordinary reported the cause, and the Court unanimously sustained the claim of the younger children.
Lord Ordinary, Methven.For Eldest Son, Connell.Agent, Ja, Robertson, W. S.Alt. Williamson,Agent, Geo. Andrew.Clerk, Gordon.
Fac. Coll, No. 42. p. 86.
