Sir C. B. Codrington, Executor of the Countess of Bath - Fullerto - Stephen v. Sir George F. Johnstone, and Others, Trustees of Sir John Johnstone - Warre - Murray [1824] UKHL 2_Shaw_118

UKHL

Sir C. B. Codrington, Executor of the Countess of Bath - Fullerto - Stephen v. Sir George F. Johnstone, and Others, Trustees of Sir John Johnstone - Warre - Murray

[1824] UKHL 2_Shaw_118

right as heir-male; and having thereafter, within year and day of the death of the defunct, made up inventories, and brought a ranking and sale of the estate, and paid the debts of the defunct, and taken assignations to them in favour of himself, his heirs and assignees;—Held, (affirming the judgment of the Court of Session), 1. That by his service and intromissions he became universally liable for the debts of the defunct; and, 2. That they were extinguished by his having paid them; and, therefore, that his representatives could not, in virtue of the assignations, recover payment of them from an heir-male who afterwards succeeded to the estate.

A party having obtained himself served heir-male and heir of line of another, and having intromitted with the rents of an estate to which be had

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Sir James Johnstone was invested in the estate and barony of Westerhall, under titles containing a simple destination to heirs-male. On the 3d of September 1794 he died without issue, leaving debts to a considerable amount; and on the 12th of December of that year, his brother, Sir William Pulteney, expede a general service as heir-male and of line of Sir James, and in virtue thereof took possession of Westerhall, and intromitted with the rents. Thereafter, on the 1st of September 1795, (being two days within the year from the death of Sir James), Sir William made up inventories under the Act 1695, c. 4. He then brought a process of ranking and sale of the estate of Westerhall, of which a sequestration was awarded, and judicial factors appointed by the Court of Session. After some delay, the creditors, whose debts were all personal, having insisted that the estate should be exposed to sale, Sir William paid the debts. The greater part of these debts was paid through the intervention of a trustee, who obtained assignations to them, and thereafter conveyed them by assignations to Sir William, his heirs and assignees. Some of the other assignations were taken directly to himself, and proceeded on the narrative, that they were intended for the purpose of preserving recourse against the representatives of Sir James Johnstone. No farther procedure took place in the ranking and sale, and it was alleged that the estate remained in possession of the judicial factors, who, however, accounted to Sir William, and not to the Court. No steps were adopted by Sir William to impose the debts which he had paid as real burdens on the estate of Westerhall, or to fix them upon the heir-male.

On the 30th of May 1805 he died, and was succeeded in the estate of Westerhall by his nephew, Sir John Johnstone, as his heir-male, and by his daughter the Countess of Bath in certain other lands, as his heir of line, and in his moveable estate as executrix. She died in July 1808, leaving a will, whereby she conveyed her moveable effects to the appellant, Sir Christopher Codrington, and another gentleman (since dead), as her executors. Thereafter Sir Christopher, as the surviving executor of her Lady-ship

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In defence, it was stated, that Sir William Pulteney had incurred an universal representation of Sir James Johnstone, by his service, intromissions, and other acts; that being thus debtor in the debts which he had acquired by assignation, they were extinguished in his person confusione; and that, as Lady Bath represented him universally, while Sir John Johnstone only succeeded as heir-male, the representatives of Lady Bath could have no claim against him for payment or relief of such debts.

On the part of the appellant it was alleged, that the service of Sir William had been obtained, not with the view of incurring an universal representation, but for the purpose of enabling certain debts to be recovered, belonging to a partnership in which Sir James Johnstone had been concerned, and as matter of evidence in a claim for the Annandale Peerage; that accordingly he had made up inventories within year and day of the death of Sir James, under which he had accounted for all his intromissions with the rents prior to the appointment of the judicial factors, and that those which had been subsequently paid to him were not more than sufficient to liquidate the interest of the debts which he had acquired. He therefore contended, that the general service could not, in the circumstances under which it was expede, infer an universal representation; that neither could the intromissions have that effect; that besides, vitious intromission was not pleadable against the representatives of the intromitter; and therefore, as Sir William was not the universal representative of Sir James, the assignations vested in him and his representatives an active title to insist for repayment from the heir-at-law, who had succeeded to the property.

The Lord Ordinary, on advising condescendences, appointed the case to be debated, and at the same time issued the following note:—

determined, can have very little effect directly on the decision of this cause; and this not merely as the present is a question inter hæredes, and not with creditors, but because it is admitted that the property left by Sir James Johnstone was more than equal to the amount of his debts. Now, as Sir William Pulteney, whether he entered heir to his brother cum beneficio or not, was undoubtedly liable for his brother's debts to the extent of the property to which he succeeded by his brother's death, it follows that he was liable for the debts in question which fell short of the value of that property. Under these circumstances it seems very difficult, in this view of the case, to hold that the debts which Sir William Pulteney so paid were not extinguished, but were preserved by his taking assignations to the same in favour of himself and of his heirs and general assignees, the persons who, failing himself, were, according to the general rules of law, responsible in the next place for payment of such debts. This is not the case of an entailed estate, where the interest of the heirs in possession, as separate from the heirs of tailzie, is acknowledged and recognized. The estate of Westerhall was limited to heirs-male; but this was only a simple destination, under which, when Sir William Pulteney succeeded, he became proprietor in fee-simple of the estate, and, as such, when he permitted the estate to descend, agreeably to the investitures in favour of the heir-male, he was entitled to impose on that heir any burdens he thought proper. Sir William Pulteney, therefore, by any declaration of his will and intention made habili modo, might have burdened the heir-male with payment of the debts in question; but it remains to inquire, whether the assignations taken by Sir William prove that such was his intention, and whether they amount to such a declaration of his intention as the law will give effect to in this case? In judging of this point, it appears to the Ordinary that it may be of consequence to attend to the circumstances under which the payments were made and the assignations taken by Sir William Pulteney. He had, as the Ordinary understands, previously instituted, and there was then in dependence, an action of sale, brought at his instance, as heir to his brother, under the Act of 1695. The legal object and effect of this action is to render the estate which is the object of it, primarily and solely responsible for the debts of the deceased; and it may therefore be considered whether the assignations, as having been taken during the dependence of this process, may not have a more powerful effect than could have been given to them if no such process had been in existence. The question, in this point of view, seems to be not at all argued in the papers, and the Ordinary has therefore ordered it to the roll.”

“The Ordinary has considered attentively the very long and elaborate written pleadings in the cause, in which, hoover, he has never had the advantage of hearing parties at the Bar. It appears to him, that the question chiefly discussed in these papers, as to whether Sir William Pulteney incurred an universal representation by the manner in which he entered heir to his brother, is one which, in whatever way it may be

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Thereafter, on hearing parties, and advising memorials, his Lordship pronounced this judgment:—

Bath, brought the present action against Sir John, concluding to have him found liable, as heir-male of Sir James Johnstone in the estate of Westerhall for payment of those debts of Sir James which Sir William Pulteney had paid upon assignations as before-mentioned: Finds, that whatever may have been Sir William Pulteney's motives or object in serving himself heir-male or of line to his brother, these can be of no consequence in judging of the legal effects of his service: and finds, that by his said service and subsequent intromissions, Sir William Pulteney incurred an universal representation, from which he could not be relieved by his afterwards giving up inventories and bringing a process of ranking and sale: Finds, that notwithstanding the universal representation which he had thus incurred, Sir William Pulteney, if he had made up titles to the estate of Westerhall, might have had it in his power to burden the heir succeeding to him in that estate with payment of the debts in question; but finds, that the necessary steps for that purpose were not taken by Sir William: Finds, that it does not appear, either from the assignations taken by Sir William, or from any other part of his proceedings, that he really had the intention of making Sir John Johnstone liable to relieve his heirs of the debts in question; and finds, at any rate, that if such was his intention, the same has not been carried into effect. Therefore sustains the defences, assoilzies the defenders from the haill conclusions of the libel, and decerns.”

“Finds, that the late Sir James Johnstone, Baronet, died without issue on the 3d of September 1794, possessed of the estate of Westerhall, descendible under a simple destination in the investitures to his heirs-male, and leaving behind him debts to a considerable amount, all of which were merely personal: Finds, that on the 12th December of the same year, Sir. William Pulteney, the brother of Sir James Johnstone, expede a general service as heir-male and of line to Sir James; and finds it proved by the documents in process, that Sir William, subsequent to the service, had intromissions to a considerable extent with the effects of the deceased, and particularly with the rents of Westerhall: Finds, that Sir William Pulteney never procured himself served heir in special to his brother, nor ever made up titles to the estate of Westerhall; but finds, that on the 1st of September 1795 when very nearly a year had elapsed from the death of his brother, Sir William gave up an inventory, with the view of obtaining the benefit thereof in terms of the Act 1695; and in the month of December thereafter, Sir William raised an action of ranking and sale of the estate of Sir James Johnstone: Finds, that said action was never brought to a conclusion, nor were the lands ever sold in consequence of it; but finds, that after raising the process, Sir William, by himself or a trustee, paid the debts in question, which had been due by his brother to a variety of creditors, from whom, instead of simple discharges, assignations were taken in favour of Sir William, his heirs and assignees: Finds, that the assignations do not express the purpose for which they were granted, except in one instance, where the assignation bears to be to the effect that the said Sir William Pulteney may operate his relief of the said sum from the representatives of the said Sir James Johnstone: Finds, that upon the death of Sir William Pulteney, his daughter, the late Countess of Bath, succeeded as his universal heir and representative to all his property, except the estate of Westerhall, which descended to the late Sir John Johnstone, as heir-male both of Sir William Pulteney and of Sir James Johnstone, the person last in infelt in that estate: Finds, that Lady Bath having afterwards died, and Sir John Johnstone having made up titles to the estate of Westerhall, the pursuers, as executors of Lady

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The appellants then reclaimed, but the Court, on the 14th November 1817, refused the petition without answers; and on the 14th day of February 1818 they adhered, on advising another petition with answers. *

The appellant then entered an appeal to the House of Lords, and maintained that the judgments were erroneous, for these reasons:—

1. Because Sir William Pulteney, non having incurred, in relation at least to heirs, (whatever might be the effect in a question with creditors), a representation by his service or intromissions, beyond the extent of the inventory and the amount of the intromissions, he did not thereby become universally liable for Sir James Johnstone's debts as heir-general: that, consequently, by having paid these debts, they were not extinguished confusione;

Footnote

* See Fac. Coll. 11th February 1818, when; it is stated, that “the Court were clearly of opinion that, in consequence of having served before making up inventories, Sir William had incurred an universal representation.”

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2. Because, even if Sir William Pulteney had by his service incurred an universal representation as heir-general and heir-male, still it was competent for him, in the character of heir-male, to pay his brother's debts, and to render them available to his heirs of line against the heirs-male succeeding to Sir James's estate; and that the mode in which he had done this,—by taking assignations to these debts in favour of his heirs-general,—was both sufficient evidence of his intention to render them so available, and a competent mode of preventing their extinction confusione.

On the other hand, it was maintained by the respondents, —

1. That Sir William Pulteney, by his service as heir-male and of line to Sir James Johnstone, and by his intromissions with the estate, had incurred an universal representation, whereby he was personally liable for all his debts: that from the moment he was served he ceased to be an apparent heir, and as it was only competent for an apparent heir to limit his responsibility by making up inventories, he could not do so, seeing that he was not an apparent but an entered heir. And,

2. That as Sir William represented Sir James universally, and thereby became the proper debtor in his debts, and as he actually paid them, they thereby became extinguished confusione, and could not be kept up by obtaining assignations to them; and that the more especially, as he had done no act whereby to fix these debts, either upon the estate or upon the heir-male succeeding to it.

The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.”

Appellant's Authorities .—1. Stair, 6. 5.; 3. Ersk. 8. 91.; 6. Code, 30. 25. § 2.; 1. Stair, 18. 9.; 1. Ersk. 4. 29.; White, June 10. 1673, (5207.); 3. Stair, 5. 21.; Allan, January 25. 1715, (3566.); Maxwell, July 12. 1717, (5210.); Robertson's App. Ca. 539.; 3. Ersk. 4.; Kerr, February 15. 1758, (15,551.) Respondent's Authorities —3. Ersk. 8. 52.; 3. Stair, 5. 17.; 3. Ersk. 4. 28.; 1. Stair, 18. 9.; Sir W. Forbes and Company, November 17. 1802, (No.10. App. Tailzie); Johnston, July 21. 1679, (3042.); Robertson, November 27. 1751, (3044); Campbell. February 17. 1747, (5217.)

Solicitors: Williams, Brooks, and Powel— J. Campbell, —Solicitors.