George Waddell of Ballochnie, and William Waddell, W.S., now of Easter Moffat v. Miss Jean Waddell of Easter Moffat [1818] UKHL 6_Paton_374

UKHL
George Waddell of Ballochnie, and William Waddell, W.S., now of Easter Moffat v. Miss Jean Waddell of Easter Moffat
[1818] UKHL 6_Paton_374
A testator left his sister the liferent of his heritable estate and his moveables, burdened with payment of “ all his lawful debts,” &c. The fee of this property, together with his moveable debts he left to the appellants. The moveable estate left to the sister fell far short of paying the deceased's debts: Held her entitled to relief from the fiar, in so far as these debts exceeded the personal effects left her. Reversed in the House of Lords.By the settlement of the deceased William Waddell, of Easter Moffat, he conveyed the fee of his heritable estate, and of his moveable debts, which might belong or be due to him at his death, to the appellants, in certain proportions. To the respondent he conveyed the liferent of these subjects, and the property, or ipsa corpora of the moveables in his actual

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The question, therefore, was, whether the burden of paying the deceased's debts had been put absolutely on the liferenter; or whether the fiars were liable in relief, in so far as they exceeded the moveable estate left to her.Dec. 11, 1813.Lord Balmuto (Ordinary) pronounced this interlocutor:possession, and draw the rents of the heritable property. But before further answer, appoints the pursuer to give in a specific condescendence of the debts due to the deceased Mr Waddell, and of all other moveables belonging to him which she has, or might have intromitted with, and of the amount of the debts due by him which she has paid, or are still resting, distinguishing the interest from the principal; and when the said condescendence is lodged, allows the defenders to see and answer the same.”“Finds that the deceased, William Waddell of Easter Moffat, “for the love, favour, and affection, which he bore to Jean Waddell, his sister,” by a deed of settlement, “disponed and assigned to, and in favour of, the said Jean Waddell in liferent, and George and William Waddell, his nephews, in fee, his personal, and heritable estate; but declaring that the said Jean Waddell, by acceptation hereof, is bound and obliged to pay all my just and lawful debts, funeral expenses, and any gifts or legacies I may think proper to leave, by a writing under my hand;” that this declaration is coupled with this other clause:
“in order the more easily to carry my intentions, with regard to my moveable property, into execution, I hereby empower the said Jean Waddell to sell and dispose of whatever part of my moveable property above assigned to her in liferent, and the said George Waddell, in fee, she may think proper, and convert the same into cash; and after payment of my debts, sick-bed, and funeral expenses, to lend out the remainder of the money on heritable bonds, taken payable to herself in liferent, and the said George Waddell, in fee;”
which unequivocally indicates the opinion and belief of the testator that his personal estate was more than sufficient to pay his funeral expenses, all debts that were due by him; that in no view could it be the intention of the late Mr Waddell, to burden his sister with his debts, in the event of their exceeding his moveable estate, and deprive her of the favourable situation in which he had placed her, by giving her the liferent of his whole property; Finds it is not denied that the personal funds have fallen greatly short of the debts of the late Mr Waddell, and therefore that the pursuer (respondent) is entitled to be relieved by the defenders, fiars of the heritable estates, in proportion to the value of these estates, in so far as the principal sums due by the late Mr Waddell exceed the personal funds and effects, the pursuer (respondent) being always liable for the interest of such sums, from the death of the late Mr Waddell, until the defenders shall enter into

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June 16, 1814.On representation, the Lord Ordinary reported the case to the Court, and the Court, of this date, pronounced this interlocutor:
“Upon report of Lord Balmuto, and having advised the informations for the parties, the Lords find and declare in terms of the Lord Ordinary's interlocutor, of date 11th Dec. 1813; and remit to the Lord Ordinary to proceed accordingly; but find the defenders not liable in the expenses of process.”
On reclaiming petition the Court adhered.Dec. 22, 1814.Against these interlocutors the present appeal was brought to the House of Lords.After hearing counsel,It was ordered and adjudged by the Lords, that the said interlocutors therein complained of be, and the same are hereby reversed; and that the defenders (appellants) be assoilzied; but without prejudice to any claim, if any such the pursuer could sustain, against the defenders (appellants) in case the interest she derived under the disposition stated, should fall short of the amount of the debts paid, or to be paid, by the pursuer (respondent).Counsel: For the Appellants, Sir Saml. Romilly, John Clerk, John Fullerton. For the Respondent, John Leach, John Cunninghame.