Scottish Court of Session Decisions

The late William Arthur, a bastard, was possessed of heritable and moveable property to a considerable amount, and on his death left a will bequeathing various legacies, and naming as one of his executors the raiser, Black. The property having, by reason of bastardy, formally fallen to the Crown, Black, as surviving executor, received a commission, in the shape of a deed of factory and agreement between the legatees and himself, to take the necessary measures for obtaining a gift from the Crown of the whole property left by the deceased, for the benefit of all concerned. A petition for such gift was accordingly presented by Black, that he might have power to recover the property, and dispose of it according to the directions contained in the settlement. Thereupon the Crown disponed and confirmed to Black, in trust, for carrying into effect the purposes of the settlement, the whole property of the deceased, with full power to intromit, &c. The deed of gift was declared to be granted under this condition, inter alia, “that Black should grant bond, with sufficient surety, to pay all Arthur's just debts, and to pay the legacies provided in the settlement; and also to account to the Crown and to the legatees, when required, for his intromissions, and to free and relieve the Crown of all claims which might hereafter arise regarding the estate.”

Some questions having arisen as to certain of the legacies, and the funds of the deceased appearing to be insufficient, after all deductions, to pay the different legacies in full, Black raised a process of multiplepoinding and exoneration, calling the several legatees as parties. On the process coming into Court, a proposal was made that those of the legatees whose claims were unobjectionable should receive a dividend from the fund already realized and consigned in bank, the chief difficulty in the way being the obligation undertaken by Black in the gift from Exchequer to pay what debts of the deceased might subsequently emerge.

The Lord Ordinary found “that each legatee who obtains decree for a sum of money under the present proceedings must, before receiving payment from the raiser, Robert Black, find caution to repeat to him the whole, or such part of the sum received as may be necessary to free and relieve him of the obligation he has come under in Exchequer, to pay all debts due by the deceased William Arthur, in the event of such debts hereafter emerging; and further, ordains the raiser to lodge in process in course of to-morrow a minute, showing the amount of the interim dividend for which decree may now go out, and the parties in whose favour it may be pronounced.”

A minute was put in accordingly, whereupon the Lord Ordinary granted warrant to and ordained Black to make payment of specific sums to the claimants, at the rate of 7s. in the pound on the amount of their several legacies, under certain exceptions; and in regard to a motion of the raiser, as to the extent of the caution, found “that the legatees are not bound to find caution conjunctly and severally to relieve the raiser of the obligations he has come under in Exchequer, to pay all debts due by the said deceased William Arthur, in the event of such debts hereafter emerging; but that each legatee who obtains payment under the decreet must, before receiving payment from the raiser, find caution before extract to repeat and pay back to him the whole or such part of the sum to be now, or at any future stage of the process, respectively received by them as may be necessary to free and relieve the said Robert Black of his foresaid obligation,” &c., and allowed this decree to go out and be extracted ad interim.

Black reclaimed, praying to have it found “that the legatees, before receiving payment of any part of the legacies bequeathed to them by the late William Arthur, are bound to find caution, conjunctly and severally, to relieve the raiser of the obligations he has come under in Exchequer, to pay all debts due by the deceased William Arthur in the event of such debts hereafter emerging.”

In support of the note, he maintained that, as the legatees had employed him on the occasion in question, they were bound, on the principle of mandate, each to relieve him in solidum.

The legatees answered, that, looking to the character of executor and donator in which Black had brought the present process, he was not entitled to make this demand; and that if the proposed liability were to be incurred by each legatee of a small legacy, he would probably prefer giving up the legacy to taking the risk.