Scottish Court of Session Decisions

In an action raised in the Court of Chancery of the County of Lancaster by the Edinburgh Life Assurance Company and others against the executors of the late Ralph Dalyell Welch, the Court, upon the motion of the defendants, ordered a case to be prepared and remitted to the Court of Session, in terms of 22 and 23 Vict. c. 63, for the opinion of the Court upon certain questions of Scotch law.

The facts as appearing from the case were as follows:—In 1870 Miss Robina Thoms was possessed of certain lands at Rumgally, Fifeshire. In that year she granted a bond and disposition in security for £10,000 over the estate of Rumgally, in favour of the trustees of Mr William Rutherford; and in the same year she granted another bond over the estate for the same amount in favour of the trustees of Mr James Richardson.

The two bonds were subsequently assigned to the Edinburgh Life Assurance Company. On the death of Miss Thoms in 1871, Charles Welch succeeded to the estate of Rumgally, and he executed a bond of corroboration and disposition in security in favour of the holders of the two bonds, in which he narrated that “it had been agreed between the company and himself that the said sums of money should be and remain a debt and burden

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upon him and his heirs and successors, and that the personal obligations contained in the said bonds and dispositions in security should subsist and be effectual.”

Charles Welch died in 1894, leaving a disposition and settlement in the following terms “I, Charles Welch Tennent, of Rumgally and Pool, dispone and assign to my brother, Ralph Dalyell Welch, merchant in Liverpool, my whole estate, real and personal, wheresoever situated, and I appoint him my sole executor and universal legatee.… I recall all former wills and settlements, and declare this to be my last will and testament.”

Ralph Dal yell Welch gave up an inventory of the moveable estate of his brother, and completed titles to the heritable estate by expeding notarial instruments in his favour in terms of the Titles to Land Consolidation Act 1868. He continued to pay the interest due to the company in respect of the two bonds on Rumgally.

Ralph Dalyell Welch died in 1895, leaving a will in English form.

An action was then raised against his executors by the company for payment of the bonds.

The plaintiffs in the said action contended that, under the circumstances stated, the said Ralph Dalyell Welch came under a personal obligation to pay to them the said sums of £10,000 and £10,000, and interest thereon, and that the defendants in the said action, as executors of the said Ralph Dalyell Welch, were liable to pay the said sums out of the estate of the said Ralph Dalyell Welch. The defendants in the said action, on the other hand, contended that the said Ralph Dalyell Welch did not come under any personal obligation to pay to the plaintiffs the said sums of £10,000 and £10,000, or any part thereof.

The question submitted for the Court of Session's opinion was:—“Whether, in the events which have happened, as hereinbefore stated, the said Ralph Dalyell Welch, became subject to the personal obligation to pay the principal moneys and interest secured by the said two bonds and dispositions in security, each for the sum of £10,000, or either of them, or any part thereof.

The executors presented a petition to the First Division craving their opinion upon this question.

Argued for petitioners—(1) The disposition to their author was a “conveyance” in the sense of the statute. Where a disponee did not require to make up his title derivatively through trustees, but did so directly from the testator, the bequest to him was a conveyance, and accordingly any personal obligation of his author, in accordance with the terms of the 47th section, transmitted only to a limited degree, i.e., if there was an agreement to that effect in gremio of the conveyance. The statute embraced not only onerous conveyances but a conveyance such as this. Accordingly, the personal obligation did not transmit. (2) The limitation in the first part of the section covered all the cases of “succession, gift, or bequest,” and was not confined to the case of an heir of line. Accordingly, under the 12th section the petitioners were not liable beyond the value of the estate to which they had succeeded.

Argued for respondent—(1) The petitioners were liable beyond the value of the succession for the full amount of the bonds. The bequest was of the whole estate, and was taken by their author on a lucrative title. If they considered the estate would not fulfil this call, their remedy was to refuse to take up the succession. The case was ruled absolutely by the decision in Wright's Trustees v. M'Laren, May 23, 1891, 18 R. 841. The limitation in sec. 12 applied strictly to “heirs,” and the use of the word was in its most technical sense, and it could not be held to include persons taking a universal gift under a gratuitous disposition—Bell's Prins. sec. 1695. Accordingly, a person taking such a bequest must know that he does so subject to the whole burdens of his author. (2) In any event the petitioners were liable for the whole benefit of the estate to which they had succeeded, heritable and moveable.