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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gray v. Gray [1872] ScotLR 9_544 (22 June 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0544.html
Cite as: [1872] ScotLR 9_544, [1872] SLR 9_544
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SCOTTISH_SLR_Court_of_Session
Page: 544↓
Court of Session Inner House Second Division.
v.
Facts:
Held that a disposition of heritage executed on deathbed to the prejudice of the heir-at-law was reducible, although it bore to have been granted in payment of a debt not otherwise proved.
David Gray, wright and joiner at Harthill, father of the pursuer and defender, died on 4th May 1871, possessed of certain heritable subjects. The pursuer was his eldest son and heir-at-law. Sometime after the death of David Gray, the pursuer was informed by the defender that the deceased had left the latter his heritable property, under the burden of providing a free house to their sister Mary Dickson Gray. The deed founded on by the defender was dated 1st May 1871, and was of the following tenor:—“I, David Gray, wright at Harthill, in consideration of the sum of One hundred and twenty-five pounds sterling, advanced and paid to me, and on my behalf at sundry times preceding the date of these presents, by John Gray, wright at Harthill, my son, which sum is hereby held and declared to be the full and adequate price and value of the subjects hereinafter described and conveyed, and of which sum so paid to me as aforesaid I do hereby acknowledge the receipt, and discharge the said John Gray, have sold and disponed, as I do by these presents sell, alienate, and dispone from me, my heirs and successors, to and in favour of the said John Gray, his heirs and assignees whomsoever, heritably and irredeemably, all and whole that piece of ground,” &c.
The following document was also granted by the defender to the deceased:—
“ Harthill, 3d May 1871.—Mr David Gray, Harthill,—My dear father, With reference to the disposition
Page: 545↓
to the subjects in Harthill, granted by you in my favour upon the first day of May current (which subjects have been sold by you to me), it is hereby declared that it is the arrangement and understanding betwixt us, that I am to give and provide my sister Mary Dickson Gray, residing in family with you, with a dwelling-house of not less than two apartments, in the village of Harthill, and which she is to occupy, rent free, during her lifetime after your decease, but that so long only as she shall remain unmarried thereafter, declaring hereby that all right to enjoy and possess such house shall cease and be at an end so soon as she shall be married, and that the same shall not again revive upon her widowhood: And I hereby bind and oblige myself, and my heirs and successors, accordingly; I also hereby agree and bind myself and my foresaids to pay all the just and lawful debts which shall be due and owing by you at your decease, and also to pay and defray your sick-bed and funeral charges and expenses, and to free and relieve my said sister, both individually and as your residuary legatee, of the whole of such debts and sick-bed and funeral charges.” The pursuer maintained that these documents were a device to defeat his rights as heir-at-law, and that the statement in the said disposition that a sale was made and a price paid was without foundation in truth. The defender averred that the said disposition was granted in consideration of a price truly paid by him to his father David Gray, seeing that he had made advances to and for his father which had not been repaid to him, exceeding the £125 mentioned in the disposition. On 1st May 1871, the date on which the disposition in favour of the defender was executed, David Gray was ill of the disease of which he died, and he died three days afterwards, without having been able to leave his house.
The pursuer pleaded that the disposition, having been executed on death-bed, ought to be reduced.
The defender pleaded that the disposition had been granted for onerous causes, and for further obligations undertaken by the defender, and was therefore not reducible ex capite lecti.
The Lord Ordinary ( Gifford) pronounced the following interlocutor:—
“ Edinburgh, 12 th February 1872.—The Lord Ordinary . . . finds that the disposition challenged . . . was executed when the granter David Gray was in lecto, but finds that the narrative of the said deed, the cause of granting thereof, and the acknowledgment by the granter therein contained, are true; and finds that at the date of the said deed the granter thereof, the said David Gray, was justly indebted to the defender John Gray the sum of One hundred and twenty-five pounds; finds that the moveable estate of the said deceased David Gray, and the whole value of the heritable subjects contained in the said disposition, were insufficient to pay the debts of the said David Gray, including the said sum of One hundred and twenty-five pounds; and finds that the pursuer, as heir-at-law of the said David Gray, is not prejudiced by the said disposition and conveyance, and has no interest to insist in the present action: further, finds that the pursuer does not offer to pay the debts of the said David Gray, including as above, so far as not provided for by his moveable estate; therefore assoilzies the defender from the whole conclusions of the action, and decerns,” &c.
The pursuer reclaimed.
Pattison and Balfour for the reclaimer.
Watson and Jameson for the defender.
At advising—
The grounds on which the interlocutor proceeds are, that, by the narrative of the deed, the granter acknowledges that he is indebted to the defender John Gray, his second son, in the sum of £125; that the value of the deceased's estate, heritable and moveable, is insufficient to pay the debts of the granter, including this said sum; and that the pursuer has not offered to pay the debts of the deceased, in so far as not provided for by his moveable estate. These grounds of defence are, in my opinion, irrelevant, and insufficient to support the conclusion at which the Lord Ordinary has arrived.
The law of deathbed entitles the heir-at-law to set aside all deeds executed to his prejudice by the deceased in lecto; and I cannot doubt that the deed in question has the effect of injuring the heir's right of succession. There is an acknowledgment of indebtedness, to the extent of the alleged value of the heritable subjects, in sums “advanced and paid to me and in my behalf at sundry times preceding the date of these presents,” but in evidence of which advances no specific vouchers are produced or alleged to exist. It is not the case of a sale of the subjects for a price paid at the time. Neither is it the case of a burden created for a present advance of money on loan. For anything that appears, these alleged advances may have been made with no view of creating debt or on the footing of loan. And the main question thus is, whether on deathbed heritage can be effectually alienated to an alleged creditor, and the heir-at-law's right of succession defeated by means of such an acknowledgment of debt as occurs in this deed? I think this quite inconsistent with the heir's right. He is entitled to have the heritage of his ancestor free of all deeds executed to his prejudice on death-bed. It may be that from the ancestor's dying insolvent, or from his personal estate being insufficient to pay his debts, the heritable subjects may be liable to be attached by the diligence of creditors. That cannot affect the heir's right to have the heritage. When the creditors take measures to constitute their debts, the heir may be able to state a good defence, or he may pay any just debts that are due to creditors of the ancestor, and thus prevent the heritage from adjudication. Such considerations are not hujus loci. The heritage of his ancestor descends to him, and no death-bed deed can be permitted to affect or injure his undoubted right of succession.
There were various views stated on which it is contended that this deed is not to the prejudice of the heir. It is first said that the acknowledgment by the deceased of moneys received is binding on the pursuer, and that his interest to have the heritage is thus destroyed. But it is manifest that to give such effect to the mere statement of advances having been made or debt incurred
Page: 546↓
But then it is said that there is no moveable estate sufficient to meet the debts due by the deceased, including the sum acknowledged to be due to the disponee, and that this has been established by the proof. The answer is, that this matter of deficiency of funds to meet the debts of the deceased is not for enquiry in this action. The heritable subjects may possibly be carried off from the heir-at-law by the diligence of creditors, but this eventuality is no legal bar to the heir's right of challenge. It is not matter relevant for enquiry under this action of reduction. The heir may choose to have, and is entitled to have, the heritage, though the succession may be ever so deeply burdened with debt.
The same answer occurs to that part of the reasoning in support of the interlocutor which is based on the heir not offering to make payment of the debts due, including the sum acknowledged by the deed under challenge. No such offer has ever been required or made a condition of the heir's right of challenge in such circumstances as the present. Where, indeed, there has been a sale to a third party, and a price paid to the granter on death-bed, or where there has been a burden created over the heritage for an immediate advance in money on death-bed, it has been made a condition of the right of challenge that the heir should make restitution of the price, or of the advances; and there are other peculiar cases where such a condition has been imposed. But in such a case as the present there is no example of this course being followed. The creditors in personal debts will have their remedy, if the moveable estate is deficient, by legal diligence against the heritage.
For these reasons I think the interlocutor under review must be recalled, and decree of reduction pronounced.
The other Judges concurred, and the Court accordingly unanimously recalled the interlocutor of the Lord Ordinary, and found the pursuer entitled to reduce the death-bed deed.
Solicitors: Agent for Reclaimer— R. P. Stevenson, S.S.C.
Agents for Defender— Hill, Reid, & Drummond, W.S.