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Cite as: [1886] SLR 24_105, [1886] ScotLR 24_105

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SCOTTISH_SLR_Court_of_Session

Page: 105↓

Court of Session Inner House Second Division.

Friday, November 26 1886.

24 SLR 105

Stirling Crawfurd's Trustees

v.

Stirling Stuart and Another.

Subject_1Warrandice
Subject_2Heir and Executor
Subject_3Effect of Clause of Warrandice.
Facts:

A testator appointed his widow his executrix and residuary legatee. He left her also two estates in heritage, which he conveyed to her in absolute warrandice, and a third estate he directed to be entailed upon his brother. These three estates he had burdened with a catholic security. In a question between the widow and the brother as to whether the latter's estate was, in consequence of the warrandice clause in the disposition to the former, to bear the whole burden of the debt in the security— held that the obligation of warrandice, though connected with heritage, was personal in its nature, and that the brother's estate was entitled to relief out of the residue in the proportion of the respective values of the estate given to him on the one hand and those given to the widow on the other.

Headnote:

William Stuart Stirling Crawfurd of Milton executed a trust-disposition and settlement, dated 21st October 1853, by which he conveyed mortis causa his whole estate to trustees for the purpose, after payment of debts, &c., of conveying Milton, and any other lands and heritages in the county of Lanark which should belong to him at his death, to the heirs of his body, whom failing to his brother Captain James Stirling Stirling Stuart of Castlemilk and the heirs of his body, with a further destination, under the fetters of a strict entail. By this deed the residue of his estate, failing his own issue, was to be given to the person who should succeed to Milton on his death.

in 1875 he married the Dowager Duchess of Montrose, the third party to this case, and by his antenuptial contract of marriage made certain provisions to her.

By deed of nomination dated 24th July 1876 he nominated his wife to be his sole executrix. By a codicil dated 1st November 1876 he, inter alia, disponed and bequeathed to her, in the event of
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her surviving him,£50,000, in addition to her marriage-contract provisions, and also the lands of Balornock, in the Barony Parish of Glasgow, and the landsof Auchinearn, in the parish of Cadder, county of Lanark, and expressly excepted these lands from the lands by his trust-settlement directed to be entailed, and directed his trustees to include in the entail the lands and estate of Milton only. The disposition contained a clause of absolute warrandice in these terms, “I grant warrandice.” He also bequeathed to her the whole residue of his estate with the exception of Milton and of any special bequests by him. By subsequent codicils he lef ther additional provisions.

He died in February 1883, survived by his wife, but without issue. At the date of his death there was existing a bond and disposition in security, dated 9th November 1882 and recorded in January 1883, for the sum of £250,000 affecting the lands of Milton and also the lands of Balornock and Auchinairn, which under the codicil of 1st November 1876 he had disponed with absolute warrandice to his wife.

His brother, and disponee of Milton, Captain Stirling Stuart of Castlemilk, maintained that this bond for £250,000 was apportionable as in a question between him and the widow, and that the estate of Milton was entitled to relief from a share thereof in the proportion of the respective values of the estates of Milton on the one hand, and Balornock and Auchinairn on the other. The widow maintained that the bond fell to be met entirely out of the estate of Milton.

This Special Case was presented by Mr Crawfurd's trustees as parties of the first part, his brother Captain Stirling Stuart of Castlemilk as party of the second part, and the Dowager Duchess of Montrose, the widow, as party of the third part.

The question for the opinion of the Court was as follows:—“Is the bond for £250,000 entirely chargeable against the estate of Milton, or, as in a question between the party of the second part and the party of the third part, is the estate of Milton entitled to the relief out of Mr Stirling Crawfurd's residuary estate from a share thereof in the proportion of the respective values of Milton on the one hand, and Balornock and Auchinairn on the other?”

Argued for first and third parties—This bond was a heritable debt secured upon three heritable estates at Mr Crawfurd's death, on each and every part of them. But in the case of the two estates left to the executrix the clause of warrandice prevented recourse against her for payment. The bond, however, also remained heritable, even after the obligation was given effect to, because it still remained charged on Milton. If the operation as between heirs of apportioning the catholic security were not gone through, recourse would be taken against the executrix by the creditor. If she paid it in whole or part she would be compelled to pay a heritable debt, and must have relief against the heir. She had not merely a general recourse against an heir of line or an heir-general, but a recourse against the heir on whose estate this was already charged, and who in this case had taken the estate on which the debt was charged. The obligation fell, then, to be fulfilled by the estate of Milton— Coventry v. Coventry, July 8, 1834, 12 S. 895; Strong v. Strong, January 29, 1851, 13 D. 548; Erskine, ii. 3, 27; Macalister v. Macalister's Trustees, Feb. 20, 1866, 4 Macph. 495; Bell's Trustees v. Bell, Nov. 8, 1884, 12 R. 85; Duncan, &c., June 22, 1883, 10 R. 1042; M'Leod's Trustees et al., June 28, 1871, 9 Macph. 903.

The second party replied—He was entitled (Bell's Prin., sec. 1926) to rateable relief of the bond corresponding to the proportional value of his estate and these of the third party. The obligation in the clause of warrandice was simply one to indemnify against eviction. The question was not different in the present case because of the existence of a heritable bond over the property. In that case, as in all other cases, eviction was the event on which the claim arose, and the claim was one for indemnification, or, in other words, for damages against the executrix—Bell's Prin., sec. 894; Stair, ii. 3, 46. There was nothing in the reason of the thing, or in the presumed intention of the granter of the warrandice to show that this portion of the catholic burden should be put on one part of the estate left, instead of falling upon his general means. The general rule of law, then, must take effect, and the obligation in the clause of warrandice being a personal one to indemnify by payment of money, the executrix must discharge the obligation without recourse against the taker of the heritable estate. The cases cited were cases of intestacy, in which necessarily the heir in heritage was bound to pay the heritable debts. Strong v. Strong and Coventry v. Coventry ( supra) were cases of relief against general disponees, and had no application.

At advising—

Judgment:

Lord Justice-Clerk—The question here relates to the bond for £250,000 charged over the estates of Milton, Balornock, and Auchinairn. Milton belongs to the second party as the heir on whom it was to be entailed, the two latter estates being settled on the widow the Dowager Duchess of Montrose. The question is, whether the obligation of warrandice contained in the original settlement of the two estates on her is prestable by the personal representative of the granter of that conveyance, or is a charge on the heir in heritage? On that, as a general question, I have no doubt whatever. It does not follow in the least that because a man disposing of his real estates comes under an obligation in regard to it, the obligation is a debt against the heir, being heritable in its character. It may be exactly the reverse. That is common in practice. The disponer dispones his lands to a disponee, and undertakes over and above that disposition to clear the estate of a subsisting debt or burden, perhaps, which affected it, or to relieve the disponee for the future of the burdens that may affect the estate, e.g., augmentations or cases of that kind. These are personal prestations, and it does not alter the character of the obligation that it refers to a landed estate. The obligation of warrandice here is exactly in that position, because the effect to which that obligation is pleaded is that Mr Stirling Crawfurd undertook that no burdens should be on the estate, and then subsequently he borrowed £250,000 and charged the sum on the three estates. It is said that his having done so was contrary to his obligation of warrandice, and I shall assume that it was. I was not altogether

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satisfied in the course of the debate, and I am not altogether satisfied yet, that when he bound the three estates to repay the debt he intended to impose an obligation of relief between the one and the other. I do not, however, raise the question as there may be a good answer to it. What I mean to say is simply this, that this is a simple obligation to relieve the two estates of any burden that might be imposed upon them. Then I think the obligation, supposing it to subsist, is one on the personal representatives of the granter.

Lord Young—I am of the same opinion. The deceased Mr Crawfurd left at least three properties—Milton, which went to his brother as heir-at-law succeeding under a special disposition, and Balornock and Auchinairn, which also by disposition went to the widow. There was a catholic security for debt over the whole three estates without distinction—that is, a heritable security for £250,000. It was conceded, and very properly I think, that where there is a catholic security over two or more estates, and these are given by the owner to different parties, the catbolic security is to be divided amongst them according to the proportional value of the estates, and this is a case for applying the rule. But in the disposition to the widow of the two estates given to her there is a clause of absolute warrandice, and it was conceded, and the case was argued on the footing that such a clause imports an obligation to clear any debt from the property warranted. The most familiar instance of that is that where a man sells an estate burdened with debt with a clause of absolute warrandice he is under obligation to the purchaser to clear it off. In that specimen instance no doubt he is bound, and if he dies before fulfilment or enforcement of the obligation it would be good against all his representatives in heritage or in mobilibus. But as in a question between heirs it is clear beyond all question that the obligation must be fulfilled by the executor. It is a personal obligation for which the executor is primarily liable to the creditor in it. The Solicitor-General stated quite accurately, I think, that the right conception of a clause of warrandice is an obligation to indemnify in case of eviction, but I do not think the argument gains much by the observation. I think it is put clearer thus—It is a claim for just so much money as will enable the holder of an estate to clear off the debt which he is under the warrandice entitled to have cleared. Now, that amount in this case is just the proportion of £250,000 effeiring to the lands conveyed by the disposition in which the clause of warrandice occurs. The question was more than once put to Mr Balfour, “Why is that claim for money heritable?” “Because,” he said, “it is to pay off heritable debt.” What has that to do with it? The creditor in the £250,000 is no doubt creditor in a heritable debt, because he has a heritable security over the three estates, but the creditor in the obligation clause in the warrandice is not a creditor in a heritable debt. The third party here, the widow, holds no security for that obligation. If it was a security over any heritable estate, it would be over Balornock and Auchinairn, which being her own is no heritable security to her. Therefore there is confusion in the argument that this obligation is heritable because it is to pay off a heritable debt. I could bind myself to pay off a heritable debt by writing on the piece of paper an obligation to do so, but it would not be a heritable obligation although the debt were heritable, but a personal one, and would be made good against me as long as I lived, and after my death against my executor, on the simple ground that it is personal.

The only consideration which affected my mind here was, whether the deceased, having made his widow, who took Balornock and Auchinairn, his executrix and residuary legatee, so that his bounty to her would be diminished if she had to pay this, is not to be taken as if he intended that it should be paid by his brother who took the estate of Milton? It is fair to notice that she is made the residuary legatee and executrix as early as 1876, but it is according to the rule of our law that every last will and testament is to be taken as speaking in the last moments of the rational existence of the deceased—what he may have put on paper till then is immaterial with us. He keeps it in his repositories till his death, and then it is taken as his last will. He might have altered the paper written in 1876, and if he had done so, and had given the residue of his estate, after satisfying his debts, to a third party, what reason could the widow suggest for passing over the third party, and going against the person to whom the deceased had given Milton. She happened to her great advantage to be the person to whom in the last moments of his life he destined the residue of his estate, and therefore she is the person to satisfy the obligation on which she founds here, and she has the means to do it. I am satisfied, then, on these considerations, that she has no claim against the heirs who succeeded to Milton, to make him meet out of that estate the whole of this bond for £250,000. That estate is entitled to relief against her as executrix in proportion to the respective values of Milton and of the estates conveyed to her.

Lord Craighill—I concur.

Lord Rutherfurd Clark—I also concur. The third party is a disponee under a mortis causa disposition of two estates which were burdened with a certain amount of debt charged by the disponer. The disposition contained a clause of warrandice, and under it she claimed to have her estate freed from the burden of debt. It is admitted on both sides that her claim to that extent is well founded. The only question is, on whom does the fulfilment of the obligation lie—that is to say, does it lie on the heir in heritage or on the executrix. I cannot entertain any doubt on the point, because the obligation is simply personal. All personal obligations must be fulfilled by the executor, because they are primarily obligations on him.

The Court pronounced this interlocutor:—“Find that the bond of £250,000 is not entirely chargeable against the estate of Milton, and that that estate is entitled to relief out of Mr Stirling Crawfurd's residuary estate from a share of the said bond in the proportion of the respective values of Milton on the one hand and Balornock and Auchinearn on the other: Find and declare accordingly: Find the parties of the first and third part liable in expenses to the party of the second part.”

Counsel:

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Counsel for First and Third Parties— Balfour, Q.C.— Guthrie. Agents— John C. Brodie & Sons, W.S.

Counsel for Second Party—Sol.-Gen. Robertson, Q.C.— C. K. Mackenzie. Agents— Graham, Johnston, & Fleming, W.S.
1886