A debt due by an heritable bond, must be paid by the heir, without relief, though the executor is taken bound in general to pay all the debts of the deceased.
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Lieutenant-Colonel Hugh Fraser of Knockie, executed a deed of settlement on the 28th of April 1801, in London, by which he disponed his lands of Knockie and Dalchapple to his cousin Simon Fraser of Farraline, binding himself to make up proper titles, and convey these lands to him, his heirs and assignees; “and with regard to my personal estate, I give, grant, devise, and bequeath the same in manner following, viz. in the first place, I order and direct, that my funeral charges and expenses, together with all my just and lawful debts, be paid by my executors hereafter named, as soon after my decease as conveniently may be: All the rest, residue, and remainder of my estate and effects, of every nature and kind whatsoever, and whenever situated, I give, grant, and bequeath, assign, convey and dispone to my uncle, James Fraser of Gorthlick, Esq, his heirs and assigness; and I hereby nominate and appoint him the said James Fraser to be my residuary legatee.”
Colonel Fraser had not been in Scotland for more then a year before he executed this settlement. His personal estate was much more considerable than his heritable property; and the only debt which he left was a bond of £2000 due to Helen and Grizel Fall, which was heritably secured upon his estate in Scotland.
Farraline, and the other trustees of Miss Falls, brought an action against the executors for payment of this bond, and the executors brought a counter action against Farraline for relief.
“The Lord Ordinary having heard parties' procurators, conjoins the process of relief at the instance of John Spalding and others, the executors of Colonel Hugh Fraser, against Simon Fraser of Farraline, Esq. with the before-mentioned process at Simon and John Fraser's instance against Colonel Fraser's executors: Finds the whole defenders, conjunctly and severally, liable, for payment of the heritable bond libelled on; but in respect the settlement by which the lands of Knockie are disponed to Simon Fraser of Farraline, one of the defenders, could only import a right to those lands, subject to the heritable debt with which they were burdened; and that the clause taking the executors bound to pay the debts, cannot have the effect of altering the right of relief between him and the executors; finds the executors entitled to relief from said Simon Fraser of Farraline, Esq. of the heritable bond libelled on, conform to the conclusions of their actions of relief; and decerns accordingly.”
The trustees presented a petition to the Court against this interlocutor, and Pleaded: The present case ought to be decided by the law of England, where the testator had his domicil, by which law the executors are liable for this debt. The settlement was drawn in London, and must be interpreted according to the received rules of the country where it was executed. But even supposing the question to be decided according to the principles of the law of Scotland; when a person dispones an heritable subject to one, and, at the same time, the bulk of his fortune to another, in a character inferring general representation, taking him bound to pay the whole of his debt, he must relieve the disponee of the burden attached to the heritable property. Considering this as a question of intention, there can be no doubt that Colonel Fraser, who had no other debt than this heritable bond, meant, by imposing the obligation of discharging his debts upon his executors, that the disponee should possess the estate unencumbered, and that the executors were only to have a right to the personal estate after paying this debt.
But the petition was refused without answers, the Court being of opinion, that, without a special clause to that effect, the legal rules of accounting between heir and executor could not be altered.
Lord Ordinary, Hermand.For Petitioner, Craigie.Agent, Col. M'Donald, W. S.Clerk, Ferrier.
Fac. Coll. No. 179. p. 403.
