Scottish Court of Session Decisions

John Chalmers Ramsay, wine and spirit merchant, Kirkcaldy, died intestate and without

Page: 35↓

issue on 6th August 1885. He was possessed of considerable estate both heritable and moveable.

Shortly before his death he had purchased certain mills and machinery, over which there were bonds to the extent of £5000.

The articles of roup, inter alia, provided that upon payment of the price, the sellers were to exhibit a certificate of searches for incumbrances affecting the said subjects for twenty years prior to the date of entry, and to purge the subjects of all incumbrances appearing on the searches affecting the same, and to grant a valid disposition.

By the minute of sale Mr Ramsay bound and obliged himself to implement and fulfil the whole obligations on him as purchaser in every respect. Immediately, after purchasing the mills, Mr Ramsay attempted to dispose of them; and, at the time of his death, which happened suddenly, he was negotiating, and had almost completed, a sale to Mr David Yule, merchant, Arbroath.

At the date of Mr Ramsay's death the price of the subjects had not been paid, nor had any conveyance been granted in his favour, while the heritable debts on the subjects remained undischarged.

William Smith Ramsay was the immediate elder brother and heir-at-law of the deceased, and upon 18th September 1885 he sold the subjects as described in the articles and conditions of sale above referred to at the price of £6000. A question having arisen between Andrew Ramsay the executor-dative, and William Smith Ramsay the heir-at-law of the deceased, as to the liability for the price of the subjects agreed to be paid by the deceased under the articles of roup and minute of sale above referred to, the present special case was presented, to which the executor was the party of the first part and the heir-at-law was the party of the second part.

The second party contended that while the right to the subjects acquired by the deceased, under the purchase by him, was heritable and vested in the second party as his heir-at-law, the price which was not paid at the time of his death formed a burden on his executry, and fell to be paid out of his moveable estate. The first party, on the other hand, maintained that the subjects having been burdened at the time of the sale with heritable debts amounting to £5000, the second party as heir-at-law of the deceased was only entitled to the subjects under burden of these bonds which be himself must discharge, and was not entitled to have any part of the price paid out of the executry.

The questions submitted for the opinion and judgment of the Court were—“Whether the executry estate of the said John Chalmers Ramsay is liable for the foresaid sum of £5100, agreed to be paid by him as the price of the said subjects without relief from the second party? or, Whether the second party, as heir-at-law of the said John Chalmers Ramsay, takes the said subjects under burden of the heritable debts thereon, and is not entitled to have the price or any part thereof paid out of the executry?”

Argued for the first party—The question was simply one of succession between the heir and the next-of-kin. There were certain well known rules which regulated such cases, and the question here was whether any specialty could be shown such as to enable the heir to escape from his ordinary liabilities. The property had been purchased by the deceased with the bonds upon it, and having died intestate, he did not indicate any intention as to whether the burden was to fall upon his heir or executor If anything could be gathered from his intention it might be presumed, as he attempted to sell the property, that he did not intend the bonds to be a burden on his executors. The Court might look at the intention of the deceased in a case like the present if in any way that was indicated by his actings— M'Nicol, June 16, 1814, F.C.; Ross v. Clayton, November, 12, 1824, 3 Sb. 191— aff. 2. Wil. & Sh. 40.

Counsel for the second party was not called upon.

At advising—