Page: 674↓
( Ante, p. 210, and vol. vii, p. 381).
Facts:
Circumstances in which held that a testator did not intend to relieve his heir-at-law of debts so as to make them burdens on his heir of provision.
Page: 675↓
Deathbed. Observed, by Lord Benholme, that the intention of a testator may be implied from a deathbed deed which has been reduced ex capite lecti.
The Lord Ordinary ( Jerviswoode) pronounced the following interlocutor:—
“ Edinburgh, 22 d June 1871.—The Lord Ordinary having heard counsel in relation to the question of liability for the annuities which are provided under the disposition and deed of settlement of the late Mr William Dunn, and by the trust-disposition and settlement of his brother the late Mr Alexander Dunn respectively; and having made avizandum and considered the debate, productions, and whole process, and having regard to the decree of reduction of the said trust-disposition and settlement ex capite lecti, at the instance of the curator bonis of William Park, the heir-at-law of Alexander Dunn, by virtue of which decree certain portions of the heritable estate which was conveyed by William Dunn under the terms of his said deed of settlement to the said Alexander Dunn, and also the whole heritable estate which belonged to the said Alexander Dunn in his own right, irrespective of his said brother's deed of settlement, have been found to belong to the said William Park as heir-at-law foresaid; and further, having regard to the terms of the preceding interlocutor of the Court, dated 21st December 1870, whereby the lands and others to which the said William Park has been so found entitled, and the rents and profits thereof, under the burdens mentioned in the previous interlocutor of the Lord Ordinary of 10th November 1870, are ordained to be withdrawn from the condescendence of the fund in medio of this process: Finds in point of law (1) that the said annuities, as having tractus futuri temporis, are heritable in their nature; (2) that as respects the annuities provided by the said deed of settlement of William Dunn, the conveyance to Alexander Dunn, under the deed of settlement, of the whole heritable and moveable estate which belonged to William Dunn having been burdened with the payment of these annuities, the said Alexander Dunn, by acceptance of said conveyance, became bound to implement the obligation so imposed upon him; (3) that as the burden of the said annuities has not been laid by Alexander Dunn upon any specific portion of his estate, heritable or moveable, the obligation for payment thereof is binding on his heir-at-law, and does not primarily attach to the remaining fund in medio in this process, or to any part thereof: Reserves to the pursuers, the trustees of the said Alexander Dunn, or other party interested, right to call upon the said William Park, as heir-at-law foresaid, to make reimbursement or payment of said annuities in so far as not paid by the said Alexander Dunn, and to make due provision for the future payment thereof, in so far as they are still subsisting, and reserves to the said William Park his answer as accords; and (4) with reference to the increase of £100 sterling made by the said Alexander Dunn in his said trust-disposition and settlement to each of the annuities provided to his nieces by his brother's deed of settlement, finds that the provision of said increase was ineffectual as against the said heir-at-law, or the lands and others to which he has been found entitled as aforesaid, and falls primarily upon the heritable estate to be taken by such of the beneficiaries as claim under the trust-disposition and settlement of Alexander Dunn: Appoints the cause to be enrolled, that parties may be heard as to the terms of such decerniture as may be necessary to give effect to the preceding findings: Reserves meanwhile the question of expenses so far as relating to the discussion in connection with the subject-matter of the present interlocutor.”
Park's curator reclaimed.
The Solicitor-General ( Clark) and Lee for him.
Fraser, Shand, Lancaster, Gloag, Asher, Maclean, and Balfour for respondents.
At advising—
Page: 676↓
Page: 677↓
The legal rules which regulate questions of relief inter hœredes, as regards the debts and obligations of the ancestor, do not admit of doubt. Personal debts and obligations are a burden on the executor, and heritable debts are a burden on the heir. And in any question of relief among heirs, it is the heir of line who is primarily liable, and who must relieve the heirs of provision, or of tailzie, of liability for the ancestor's debts. This is the rule; but the ancestor may burden particular heirs, or special heritable estates destined to special heirs; and effect will be given to such intention whenever explicitly declared, or to such direct imposition of debt or obligation on special heirs or heritage, to the relief of the heirs of line. The question is, whether this relief is provided for or exists in this ease.
The whole estates, heritable and moveable, which belonged to William Dunn were conveyed by his deed to his brother Alexander under the burden, inter alia, of his debts and of the annuities in question. The whole succession conferred on Alexander was thus burdened; and by his acceptance of the deed he became personally bound to discharge and provide for the debts and annuities, payment of which, in truth, was attached as a condition to the succession. No specific portion of the estate was charged with the burden either of the debts or the annuities; although, had any question arisen as between parties respectively entitled to the heritable estate and to the moveable funds, the annuities, being payable for a tract of future time, would have been a burden on the parties taking the heritable estate, while the moveable succession must have borne the burden of the personal debts. In this case no such question could arise. Alexander having survived his brother, and taken the whole succession, became bound to discharge, on the same fooling as if they were his own personal obligations, both debts and annuities.
Page: 678↓
This deed of William Dunn, however, contains what has been found, by judgments of this Court and of the House of Lords, provisional substitutions relative to specific heritable subjects, conveyed by his settlement to his brother Alexander under the universal conveyance in his favour. And as the terms of the deed by which these substitutions were created have been founded upon by Alexander's heir-at-law as equivalent to a specific declaration that the burden of the annuities should attach to the heirs' substitute upon their succession-it is proper to examine the terms of William's deed in this respect, so as to ascertain with precision what his intention was as to these annuities.
Clear it is that no special burden is imposed upon the lands, to the succession of which the substitute heirs were called. Payment of them was expressly imposed upon Alexander as a condition of his taking the whole succession, heritable and moveable; and the inquiry resolves into this, whether that part of the deed relative to the special heritable subjects was intended to impose the burden of these annuities upon the substitute heirs as a personal obligation attaching to them as they should succeed. Although such personal obligation has not been created a real burden on the lands, it is quite competent for the heir-at-law to show that by clearly expressed declaration it was so attached to the destination that no heir-substitute could take the special subjects without subjecting himself to liability. The cases of Lord, Macdonald and of Cochrane were decided upon that footing—the intention being clearly indicated that the heirs of provision, and not the heirs of line, were the parties on whom the burden of payment was laid. Such intention, however, must be clearly set forth. The burden of the ancestor's debts, when heritable, primarily attaches to the heir of line; and a specific declaration that the heir of provision is to be bound must be found in the deed of settlement—either in express words, or by necessary implication—ere this primary liability on the part of the heir-at-law can be held discharged, and his right to be relieved of such debts recognised. The deed of William, however, contains no such declaration. Had Alexander predeceased without heirs of his body, and the succession to William's estates, heritable and moveable, opened to the parties to whom the specific heritable subjects are conveyed, and also the whole residue of the estate, heritable and moveable, these parties could have taken the succession only subject to the same burdens and conditions as those imposed on Alexander, his heirs and successors. The clause in that event would have been treated as a conditional institution. But Alexander having survived and taken the succession, heritable and moveable, became personally liable for the whole burdens and provisions in question, eo ipso and as a condition of his acceptance of the general conveyance in his favour. Supposing Alexander to survive him, and take under the deed, and vest himself with the estate, whether partially or wholly, there is no indication of an intention on William's part that his brother was to be relieved of the obligations attached to his succession, or that, upon his death intestate, the heirs of provision were to relieve his (Alexander's) heir-at-law and general estate of obligations for which he was primarily bound to provide. As in a question between the two sets of heirs it cannot be predicated to have been William's intention that the heirs taking the specific subjects were to relieve Alexander and his general estate.
On the opening of the succession by William's death Alexander completed his title to the whole moveable estate by confirmation as executor-nominate. And as regards the heritable estate, he vested in himself by completed titles large and valuable portions of it, and these, upon the supposition of his dying intestate, would have fallen along with his own heritable estate to his heir-at-law, to the detriment of the succession of the heirs-substitute in William's deed to those of the special heritable subjects which had not been so dealt with by Alexander. And yet the contention of the heir-at law is that the annuities in question are burdens by special declaration upon those heirs of provision to his relief. I cannot so real William's deed. I cannot hold it to contain that specific declaration of intention which was necessary, in the event of Alexander's dying intestate, to relieve his heir-at-law from payment of these annuities.
The trust-deed and settlement executed by Alexander, by which he attempted to convey at once his own heritable estate, as well as that which had belonged to his brother William, and also his whole moveable estate to trustees for the purposes therein specified, was executed on deathbed. It was consequently reducible, and has been reduced in so far as prejudicial to their respective interests, both by his heir-at-law and by certain of the heirs of provision—Mr Dunn Pattison in particular—claiming under the substitutional provision in William's deed of settlement. I do not think it in the least doubtful that the heir-at-law is entitled to take Alexander's heritage on the same footing as if Alexander had died intestate. Had Alexander's deed gratuitously imposed burdens upon his own heritage, to the relief of the heirs of provision, which, but for the deathbed deed, the heir would have taken free, the decree of reduction must have the effect of entitling him to claim the heritage as if no disposition of it had been attempted by Alexander. There is not, however, any such effect operated by Alexander's deed. In the view which I take of the relative position of the parties, and which I have endeavoured to explain, Alexander's general estate was primarily liable for William's debts and annuities; and consequently, his heir-at-law was bound to bear without relief from the heirs of provision those burdens.
This view appears to me conclusive of the present argument in all its branches. As regards those of the heirs substitute who have repudiated Alexander's deed, they can be subject to no personal obligation not imposed upon them specially by the deed of William. And as regards the heirs of provision who do not repudiate Alexander's deed, but are willing to let it stand so far as their interests are concerned—I do not think that the heir-at-law can found upon it to the effect of being benefited by any declaration of intention to impose the burden of the annuities on the heirs of provision in the special subjects, supposing the deed to have so declared. But I can find no such intention indicated. There is no clause or provision to that specific effect; and any implication of intention as to this matter, to be drawn from the provisions of the deed, rather tends to the opposite conclusion. All that Alexander has done, as regards these annuities, is to declare that the whole estates, heritable and moveable, given to the trustees shall be liable for their payment, as well as for his whole debts and obligations.
Page: 679↓
The annuities, indeed, have been increased to the extent of £100 each by Alexander's trust-deed; and the heir-at-law's rights might be thereby prejudiced; but the Lord Ordinary by his interlocutor has specially found that he is entitled to be relieved from the burden of these additional annuities.
Page: 680↓
Page: 681↓
Solicitors: Agents for Reclaimer— Murray, Beith & Murray, W.S.
Agents for Respondents— J. & R. D. Ross, W.S.; W. Ellis, W.S.; Melville & Lindsay, W.S.; Maconochie & Hare, W.S.; James Webster, S.S.C.; Graham & Johnston, W.S.