Mrs. Sarah Drummond, Widow of the deceased James Drummond, Esq., of Dept. ford, Guardian for her Son, and William Molle, W.S., her Attorney v. James Drummond of Stagaith, Esq., and Others, Trustees of Mrs. Clow or Drummond, Wife of the deceased James Drummond, and Others, being the Mother and four surviving Sisters of the late David Drummond [1799] UKHL 4_Paton_66

UKHL
Mrs. Sarah Drummond, Widow of the deceased James Drummond, Esq., of Dept. ford, Guardian for her Son, and William Molle, W.S., her Attorney v. James Drummond of Stagaith, Esq., and Others, Trustees of Mrs. Clow or Drummond, Wife of the deceased James Drummond, and Others, being the Mother and four surviving Sisters of the late David Drummond
[1799] UKHL 4_Paton_66
Mrs. Sarah Drummond , Widow of the deceased James Drummond , Esq., of Dept. ford, Guardian for her Son, and William Molle , W.S., her Attorney, Appellants v. James Drummond of Stagaith , Esq., and Others, Trustees of Mrs. Clow or Drummond , Wife of the deceased James Drummond , and Others, being the Mother and four surviving Sisters of the late David Drummond , RespondentsHouse of Lords, 20th Feb . 1799 .Subject_ Heritable Debt — Relief among Heirs — Foreign Decree — Domicile — Res Judicata. —A party, originally a native of Scotland, died domiciled in England, leaving an heritable estate in Scotland, and considerable moveable estate in England. The deceased's brother succeeded to the heritable estate in Scotland, and his mother and sisters, along with himself, to the personal estate in England. There was an heritable debt over the estate in Scotland for £2000, to pay which he sold part of the estate. He also took out letters of administration as to the personal estate in England; and the respondents having brought action there to make him account for their shares, he contended, that as by the law of England, where the deceased died domiciled, heritable bonds were a charge on the personal estate, he was entitled to deduct the heritable debt paid. The courts in England found accordingly. But the respondents thereafter raised an action in Scotland, of relief against the heir of provision in the heritable estate. Held him liable in relief, and that the foreign decree was neither res judicata , nor had decided the question of relief competent to the executors against the heir, who, according to the law of heritable estate and succession in Scotland, was liable to pay that debt.Mr. Clow, Professor of Logic in the University of Glasgow, left his estates of Duchally and Pettentian, situated in the county of Perth, in Scotland, to his nephew, “David Drummond, merchant in London, and the heirs of his body, whom failing, to James Drummond, and the heirs of his body.”David Drummond succeeded to these estates. He was a native of Scotland, but had been always domiciled in England,

Page: 67 ↓

July 27, 1791.He granted an heritable bond over both these estates of Duchally and Pettentian to Captain Birrel of Kirkaldy, for the sum of £2000 borrowed from him. He died thereafter in London, intestate, and without issue, leaving considerable moveable estate, and the real estates above mentioned.In terms of his uncle's deed, the heritable estates in Scotland devolved on his brother, James Drummond, as heir of provision. The personal estate, if regulated according to the law of England, devolved on his mother, his five sisters, and James Drummond his only brother, the heir to the heritable estate.James Drummond took out letters of admistration from the Prerogative Court of Canterbury to the personal estate. He also made up titles to the Scotch estates, and sold the estate of Duchally for £3800; and from the price thereof paid off many of his brother's debts, and in particular, the bond of £2000 to Captain Birrell.The respondents, as next of kin, preferred their claim against the administrator in England, by raising an action in the English Courts to make him account for the personal estate, and to have the same distributed according to the English statute thereanent. Accordingly, the administrator was ordered to give in, and did give in, an inventory of the personal estate, but having deducted from the amount thereof the sum of £2000 paid to Captain Birrell, being the amount of the deceased's bond to him, the question came to be, Whether this debt was a charge on the real estates in Scotland, or his personal estate in England?The next of kin contended, before the English Courts, that the deceased was a native of Scotland. That at the time of his decease, and for several years before that event, he was possessed of real estates in that country, constantly kept an establishment of servants at his mansion-house of Duchally, and occasionally resided there. That, though by the law of England, mortgages when paid, are chargeable against the personal estate, and so fall on the executors, yet the bond here was not an English bond. That this was a Scotch bond for money to be paid in Scotland, to a party domiciled in Scotland, and secured over estates there; that,

Page: 68 ↓

No appeal was taken from this sentence, but the respondents, conceiving that the above judgment did not bar their claim of relief against the heir of provision, who was primarily liable as such for the payment of this heritable debt, raised the present action in the Court of Session against him, concluding for relief, and payment of six-seventh parts of the £2000 (James Drummond being entitled to the other one-seventh according to the law of England).Feb. 1, 1797.At first, the Lord Ordinary (Lord

Justice Clerk M'Queen) pronounced this interlocutor:

“In respect that David Drummond died domiciled in England, and that letters of administration were taken out from the Prorogative Court of Canterbury by the defender, James Drummond, finds that the personal estate of the said David Drummond is to be administered according to the law of England; and, in respect that this question has been already tried, and received the decision of the Judge of the Prerogative Court, finds the action not now competent in this Court, and therefore sustains the defences.”
Dec. 8, 1797.But afterwards, on representation, his Lordship found, “that by the laws of Scotland, when a sum of money is secured upon lands by an heritable bond and infeftment, the lands are held to be the principal debtor; and in respect that the estate belonging to David Drummond, over which the heritable bond in question is granted, was taken up by James Drummond as heir to his brother: and that the same is of much greater value than the sum in

Page: 69 ↓

May 17, 1798.On reclaiming petition, the Court adhered. “In respect, the pursuers did insist only upon a decree for six-seventh parts of the sum in the heritable bond.” A second reclaiming petition was presented, contending that the Prerogative Court had already pronounced decree in this matter, which fell properly within its cognizance, and was exhaustive of the present question, and that, as the deceased was a domiciled Englishman, the succession to his personal estate, and the burdens to which that estate was liable, behoved to be regulated by the law of England, and consequently, that the decree of the competent Court in that country must be held to be res judicata in favour of the defenders. But the Court adhered with expenses.May 30, 1798.Against these interlocutors the present appeal was brought to the House of Lords.Pleaded for the Appellants .—The deceased David Drummond, though a native of Scotland, was domiciled in England at the time of his death, and having died intestate, the succession to his personal estate must be regulated by the law of England; and those who are called to the succession, by that law must take it with every debt and with every burden to which that law has rendered it liable. By the law of England, the mortgaged debt due to Captain Birrell having been contracted by the late David Drummond himself, is chargeable on his personal estate, (which is more than sufficient for answering the same), in exoneration of the real estate. This heritable debt due to Captain Birrell having been completely extinguished by the discharge and renunciation of the creditor, the heritable security was at an end, and the real lien over the lands was dissolved, and

Page: 70 ↓

Pleaded for the Respondents .—By the law of Scotland, when a sum of money is secured by an heritable bond and infeftment, the land is held to be the principal debtor, and the land passes to the heir, burdened with the heritable debt, as much as with the land tax, or any other imposition

Page: 71 ↓

Page: 72 ↓

After hearing counsel, it was

Ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.Counsel: For Appellants, W. Adam, John Bell. For Respondents, W. Grant, F. Lawrence.