Scottish Court of Session Decisions

The other question raised by the heir-at-law appears to me to be virtually settled by the previous judgment affirmed by the Second Division, because the principle upon which that went was this, that where a debtis charged upon a heritable estate the heir taking up that estate is liable for payment of the debt, and his liability is not limited to the amount of the particular estate charged, provided he takes up at the same time other estate belonging to the deceased ancestor upon the same title. That being decided in a question between the heir-at-law and the executors, I think the same principle is directly applicable to the present question between the heir-of-line and the heir of another denomination, that is to say, the heir of the particular real estate situated beyond the territory which is carried by the law of the place where it happens to be situated, and a different heir from the Scottish heir-of-line. Therefore I ought to say that the cases which have been cited do not appear to me to have really any direct bearing or any bearing at all upon the question in dispute. The case of Ogilvie v. Dundas, proceeded entirely upon the construction of the particular marriage settlement upon which the question arose, and the judgment of the House of Lords reversing the judgment of the Court here proceeded exclusively upon the terms of that settlement. Therefore it does not appear to me to be an authority for any other case, and certainly not an authority for a case in which the rights and liabilities of the heir are not regulated by the testamentary settlement of the deceased but by the ordinary rules of law. The cases in which heirs of a different denomination have been held bound to contribute rateably to the payment of the debts appear to me to be all cases falling under one or other of two categories. Either they are cases where the debts to the payment of which they were to contribute have been charged by the deceased on their constitution upon the several estates which have descended to different heirs, or else they are debts the payment of which he has regulated by a testamentary settlement. I have found no case, and no case was cited to me, in which that principle was applied in such a case as the present where there is nothing to affect the debt specially charged upon one estate. Therefore I have not been able to see any ground for excepting this from the general principle to which I have referred. The result will be to sustain the claim of Mr Perston.

I think Mr Perston is certainly entitled to the expenses properly incurred in the discussion of the question that was really litigated with him; but that he is bound to establish his propinquity and right according to the law of Burmah. He cannot have the expenses applicable to that part of the discussion.”