Scottish Court of Session Decisions

The facts of this case appear sufficiently from the opinion of the Lord Ordinary ( Kyllachy). His interlocutor and opinion are as follows—“Finds that the policy was, subsequent to the date of the truster's settlement, assigned by the testator to the Town and County Bank in security of an overdraft due by him to the said bank: Finds in these circumstances that the pursuer is not entitled to the contents of the said policy, except subject to the claims of the bank, and that the defender, as executrix of the deceased, is not bound to free the policy from these claims out of the general estate: Therefore assoilzies the defender from the conclusions of the summons, and decerns: Finds the defenders entitled to expenses, &c.

“ Opinion.—The pursuer in this case is the mother of the late John Stewart, a farmer in Aberdeenshire, and the defender is the deceased's widow and executrix. By a mutual disposition and settlement, executed by the deceased and his wife some years before his death, he left to his mother, the pursuer, the contents of a certain policy of assurance upon his life. By assignation, dated within a few months of his death, he assigned this policy to his bankers in security of an overdraft, and at the time of his death the sum due to the bank exceeded the value both of the said policy and of another policy to which the bank also held an assignation.

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The pursuer in these circumstances claims that the widow and executrix shall pay the amount of the bank's debt, so as to free the policy and make the same available to the pursuer. The defender, on the other hand, maintains that the legacy was adeemed by the assignation, or otherwise that the policy must be held to have been bequeathed cum onere, and so to be ultimately, as well as primarily, liable for the charge upon it.

Curiously enough, the point of law which is thus raised is one upon which there is no direct authority in the law of Scotland—at least none was cited, and I have found none.

According to English law a specific legatee is entitled to have his legacy redeemed, at the expense of the testator's general estate, from charges created by the testator; and although the rule as regards bequests of real estate appears to be altered by the Act 17 and 18 Vict. cap. 113, I do not find that there has been any alteration by statute with regard to specific legacies of moveable subjects. As expressed by Lord Thurlow in the case of Ashburnet, 2 Brown's Chan. Rep. 113, ‘If a testator gives a cup which is in pawn, it is a full gift, and the executor must redeem.’

The rule seems to be the same in the civil law. At all events it seems to have been so settled by the time of Justinian, when the various forms of bequest ( per vindicationem, per damnationem, sinendi modo, per praeceptionem) had been abolished

But it rather appears to me that on this matter the law of Scotland has not followed either the civil law or the English law. It certainly holds—contrary to the English rule—that when a particular landed estate is disponed to a particular deponee, the latter takes it subject to any debts by which it is burdened, or with which it may be burdened by the testator. And while this is not perhaps necessarily conclusive as between a specific legatee in movables, and an executor or residuary legatee, I am not able to see that there is any distinction in principle. In the absence of authority, I think the analogy applicable to burdens on heritable estate must be followed, and therefore I am, on the whole, of opinion that the pursuer's claim must be repelled.”

The pursuer reclaimed, but the case was settled before it was called in the Inner House.