The Right Honourable Lord Macdonald . sDr. Lushingto - Keay v. The Honourable Archibald Macdonald . Lord Advocate (Murray - Tinney [1835] UKHL 1_SM_341

UKHL
The Right Honourable Lord Macdonald . sDr. Lushingto - Keay v. The Honourable Archibald Macdonald . Lord Advocate (Murray - Tinney
[1835] UKHL 1_SM_341 · 1835-04-13
Subject_ Heir and Executor — Relief — Clause.A party possessed of two estates, the one of which he held in fee simple, and the other under an entail, which allowed reasonable provisions for younger children, having bound himself, and his heirs succeeding to these two estates, to pay certain provisions to his younger children; and the first heir who succeeded to these estates having possessed them without paying the provisions, Held (affirming the judgment of the Court of Session) that the second heir succeeding to these estates was liable, without relief against the executors of the first heir.Alexander the first Lord Macdonald had a daughter, Lady Sinclair, and five sons, viz. Alexander Wentworth, Godfrey, James William, Archibald, and Dudley. His lordship was fee-simple proprietor of the estate of Strath, and he held the estate of Macdonald under a deed of entail, which authorized the heirs in possession “to provide their younger children, besides the heir, with competent provisions, agreeably to the circumstances of the estate.”By a bond of provision, dated 24th September 1794, Alexander Lord Macdonald “bound and obliged himself,

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Alexander Lord Macdonald, the granter of this bond of provision, died on 12th September 1795, and the sum of 7,500 l ., thereby granted to the laten James William Macdonald, became due and payable at Martinmas 1795, and bore interest thereafter till payment.Upon the death of Alexander Lord Macdonald, he was succeeded in his lands and estates of Macdonald and Strath by his eldest son, Alexander Wentworth the second Lord Macdonald.The deed referred to in the bond of provision was a general disposition and trust deed, executed by the said Alexander the first Lord Macdonald, of the same date with the bond of provision, by which he appointed the Earl of Buchan and several other friends, and also his eldest and younger sons, as they should attain to majority, to be his trustees; and disponed and conveyed to them all his lands and heritages whatsoever (excepting the family estates of Macdonald and Strath,) and all personal property, debts, and sums of money that should belong to him at his death, and appointed his said trustees to pay certain provisions to Lady Sinclair and her family, and thereafter to divide the remainder of the whole foresaid trust estate and effects equally among his four younger sons.Alexander first Lord Macdonald held the estate of Strath in fee simple; and though the estate of Macdonald was held under a deed of entail, executed in 1726, this deed had never been registered in the record of entails. This deed of entail, besides authorizing the heir in possession to contract debts to a certain extent, contained also the following declaration and provision:—above named, to provide their younger children, besides the heir, with competent provisions, agreeably to the circumstances of the estate at the time; declaring always, that the bonds of provision, so to be granted by them to their said younger children, shall be so qualified, that any adjudication to be led or deduced thereupon shall only subsist as a real security for the principal sums, annual rents, and expences actually disbursed, but that the legal reversions of the said diligences shall never expire.”
“And likewise reserving power and liberty to the said Alexander Macdonald (the institute) and his heirs

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The sums contained in the bond of provision above mentioned did not exceed three years rents of the entailed estate of Macdonald at the time they were granted. It appears that the rentals of the estates of Macdonald and Strath, including the kelp for the years 1793, 1794, and 1795, amounted, after deducting all expences, to about 11,670 l . yearly; of which rental, the unentailed estate of Strath yielded only about 1,000 l .Immediately after the death of Alexander the first Lord Macdonald a meeting of his relatives and friends was held in Edinburgh, which was attended by his eldest son Alexander Wentworth, then Lord Macdonald: by the defender Godfrey Macdonald, his second son; by Sir John Sinclair, and by several other of the trustees, all of whom accepted of the trust, and appointed Mr. John Campbell to be their factor, and gave directions for the management of the trust, as appears from the minute-book kept by these trustees. It also appears from the same record, that a memorial and queries had been prepared for the trustees, to obtain the opinion of Mr. Adam Rolland and the Honourable Henry Erskine, advocates, with regard to the effect of the bond of provision as to the entailed estate of Macdonald. The

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At the next meeting of the trustees, at which the late Alexander Wentworth Lord Macdonald was present, the memorial and queries, with the opinion of the learned counsel above mentioned, were laid before the meeting; and the minutes bear, “that the 30,000 l . provided to the younger children is clearly a burden upon Lord Macdonald's estate.”In a state of the trust affairs laid before that meeting the 30,000 l . contained in the bond of provision is put down as “a sum left by his Lordship's settlements as a burden upon the estate.”Several years afterwards Alexander Wentworth Lord Macdonald having an intention to borrow some money upon his unentailed estates, while he admitted that the bond of provision formed a burden upon the entailed estate, was desirous to be informed whether this burden

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“In case the above 30,000 l . shall be considered as applicable proportionally to the whole of his lordship's estate, what method would be best to fix this, so as to render the security for the 30,000 l . in the first place, and then of the posterior creditors, indisputable ?”
The opinion of Mr. Blair upon this case was very clear and explicit. He says, “I am of opinion that the bond of provision which his lordship granted in favour of his younger children in September 1794, ought to be held and presumed an exercise of the power, which he had by the entail, of burdening the estate of Macdonald, in so far as that power shall be held in fair construction to extend; and that this was the intention of Lord Macdonald seems also to be clear.” He adds, that though there may be some difficulty in fixing the precise amount of the sum which might be made a burden on the entailed estate, he thinks that the amount of three years rents might be taken as a reasonable test for determining the extent of the burden

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In consequence of the opinions now referred to, all the parties concerned relied that the younger sons were sufficiently secured upon the entailed estate for the payment of the bond of provision in question; and in particular the late Lord confided therein, that he required to give no further security upon the said estates to them. Every arrangement which took place, and the conduct of all the brothers to the late Lord's death, proceeded upon this view of the matter; and it appeared to be perfectly understood by all parties concerned as fixed and settled that the bond of provision was equally effectual in creating an obligation against the heirs of entail, and the heirs succeeding to Strath, as if the provisions therein contained had been created real burdens on these estates by infeftment or adjudication.Upon the 27th of August 1803 the respondent Mr. Archibald Macdonald, in fulfilment of certain

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On the 19th day of June 1809 the late Alexander Wentworth Lord Macdonald advanced to the pursuer 2,000 l . sterling, and on the 23d May 1810 the farther sum of 2,500 l ., leaving the principal sum of 3,000 l . still due to the pursuer under the said bond of provision. This sum, with the interest since Whitsunday 1824, remains due to the pursuer; and the question at issue is, whether the present Lord Macdonald, who it is admitted has succeeded to the estates of Macdonald and Strath, is not liable to pay this balance. The respondent, Mr. Archibald Macdonald, is the third son of the late Alexander the first Lord Macdonald.On the revised cases for the parties being lodged the Lord Ordinary pronounced the following interlocutor:—the Islands of North Uist and Skye,’ to pay the said sum in equal proportions to his younger sons, Godfrey, Archibald, James, and Dudley Stuart Erskine Macdonald: Finds, that the Honourable James Macdonald, in addition to his share of 7,500 l ., acquired right to the sum of 3,252 l . 10 s . 4 d . of the share belonging to his brother Godfrey now Lord Macdonald: Finds, that Alexander Lord Macdonald was succeeded in the estates of Macdonald and Strath by Alexander Wentworth, the late Lord, who died in 1824, and was succeeded in the said estates by the present defender: Finds, that no part of the said sums of 7,500 l . and 3,252 l . 10 s . 4 d ., amounting to 10,752 l . 10 s . 4 d ., was paid by Alexander Wentworth the late Lord Macdonald, and that the present action is brought by the pursuers, being three of the executors of the Honourable James Macdonald, who died in 1814, for their shares of the said sum: Finds, that the present pursuers are also the whole executors of the late Alexander Wentworth Lord Macdonald, and have in the present action been met by the defence, that the debt in question, being one for which the late Lord Alexander Wentworth was personally liable, is a debt properly affecting his executry, and of which the defender is entitled to total relief from the pursuers, his executors: Finds, that by the bond libelled, creating the obligation, that obligation was expressly imposed on the granter and the heirs succeeding him in the estates of Macdonald and Strath: Finds, in respect of the special terms of the bond, that the obligation to pay, though personal, devolved successively on the heirs possessing those estates, and that therefore the debt, in so far as unpaid by the late Lord Macdonald, was not one of which the defender, the heir now in possession of these estates, is entitled to demand relief from the executry of his predecessor: Therefore, repels the defences, and decerns in terms of the conclusions of the libel in regard to the principal sum, and also in regard to the interest from the 19th of June 1824, the period of the late Lord's death; but in regard to the interest falling due during the possession of the estates by the late Lord Macdonald, sustains the defences and assoilzies the defenders: Finds no expences, due and decerns.
“19 th January 1832.—The Lord Ordinary, having considered the cases for the parties, finds, that in the year 1794 Alexander Lord Macdonald executed a trust deed, conveying the whole of his heritable estates, with the exception of the estates of Macdonald and Strath, and the whole of his moveable property, to certain trustees, for the behoof of his younger children: Finds, that at the same time, Alexander Lord Macdonald executed a bond of provision for the sum of 30,000 l ., by which, ‘over and above the other provisions settled upon his younger sons out of his separate estate and effects, he bound and obliged himself and the heirs succeeding to him in his lands and estate of Macdonald and Strath and others lying in

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(Signed) “ John Fullerton. ”

To this interlocutor his lordship added the following note:—

that the bond creating the obligation imposes it specially on the heirs succeeding in the estates of Macdonald and Strath; and again, the estates of Macdonald forming by far the most valuable of the two, (in the proportion, according to the pursuers, of more than eleven to one,) was held by the granter under a strict entail, containing a power to grant provisions to younger children, while it is not denied by the defender that the bond of provision in question was within that power. Indeed, it is expressly admitted in the defender's case that he is bound, not only as the heir in Strath, but as the heir in Macdonald. With regard then to the estate of Macdonald, or rather such parts of the bond of provision as might be ascertained to form a burden on the heir in that entailed estate, this seems the ordinary case of a debt effectually created against the heirs of an entailed estate; a debt as to which, though remaining personal, the heir in possession so far from being bound without relief (so as to transmit the obligation against his general representatives,) is held entitled, even in the case of payment, to take assignations enabling his general representatives to obtain relief against the succeeding heirs of entail. As to the estate of Macdonald, then, it seems to follow from the known rule applicable to entailed estates, that by the bond in question the granter intended to create, and did effectually create, a burden transmissible against the heirs successively taking the estate, without relief from the executry of their respective predecessors. In regard to the estate of Strath, which is unentailed, there is more difficulty. The question, how far the heirs of an unentailed estate may be successively bound in an obligation merely personal, without relief, except from their successors, is one which must be of rare occurrence, as in such a case the unfettered nature of the right affords the heir in possession the means of relieving himself. But still the Lord Ordinary perceives no incompetency or inherent incongruity in constituting a debt in such a way as to impose the obligation of debit, though personal, on a certain series of heirs, any more than in destining a personal right of credit to such series of heirs, of which last the competency cannot be doubted. The question, then, is one purely of intention; and considering the terms and whole tenor of the bond of provision, and its effect according to the ordinary rule, in regard to the entailed estate of Macdonald, the Lord Ordinary thinks, that does contain a sufficient expression of intention, even as to both estates, that the obligation, so long as unperformed should devolve successively on the heirs taking those estates; and that, in absence of any deed of the late Lord Alexander Wentworth altering that arrangement, it must be held, in a question inter hæredes, like the present, to have been his intention that the debt should be paid by the heirs of the estates, the debtors appointed by the bond, without relief from his own executry. Upon these grounds, supported by the analogy drawn from the unquestioned practice in the case of entailed estates, the Lord Ordinary has repelled the defence in so far as it is pleaded against the claim for the principal and for the interest accruing since the present Lord became liable by succeeding to the estates. He cannot, however, extend the principle beyond what is warranted by that analogy. He has therefore considered the interest accruing during the possession of the estates by the late Lord Alexander Wentworth as properly a debt due by him in his individual character, to which the defender's claim of relief against the executry is applicable; and, as it is not denied by the pursuers that the executry of the late Lord is sufficient for that purpose, he has sustained the defence in regard to that interest.”
“Note.—The defender does not deny his liability for the debt; but pleads that he is entitled to be relieved from the executry of the late Lord Alexander Wentworth. In the ordinary case this would require to be made good in an action of relief against the executors; but as here the pursuers, claiming equal shares in the sum pursued for, happen to be also the whole executors interested in the intestate succession of the late Lord Alexander Wentworth, the question of relief admits of being discussed in the form of a defence. The question thus raised is attended with considerable difficulty. There seems no reason to doubt that when a granter of a bond of provision binds his heirs generally, the obligation on the first heir forms truly a personal obligation to all intents and purposes, which will, in the event of payment not being made during his lifetime, devolve on his executors without relief from his heir. But the peculiarity of this case is

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(Signed) “J. F.”

The above interlocutor having been brought by a reclaiming note under the review of the Second Division of the Court, their lordships, by a majority, adhered to that judgment, and, of this date, pronounced the following interlocutor:—
“Edinburgh, 29th May 1832.—The Lords, having considered this reclaiming note, with the other proceedings, and heard counsel, adhere to the interlocutor of the Lord Ordinary, and refuse the desire of this note.”
The following are the opinions delivered by the judges of the Second Division on which the above interlocutor is founded:—Lord Cringletie .— “I think the interlocutor of the Lord Ordinary is right. The provision was laid by the first Lord Macdonald on the heirs succeeding to him in his lands and estates of Macdonald and Strath; and it appears to me, from the deed which he afterwards executed, conveying his whole estate, personal and moveable, to trustees for the purposes therein stated, that it never could have been in his contemplation that any of the heirs should be bound to pay the provision, except the heirs succeeding to the estates of Macdonald and Strath. This I conceive

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Lord Glenlee .— “As to the executors of the first Lord Macdonald, there can be no possible doubt that there can be no claim against them in consequence of the declaration in the bond; but not in respect of the terms of the bond, binding himself and the heirs in Macdonald and Strath to pay, but from the reference it makes to the other deed he granted at the same time.If the question was of such a nature as admitted of my thinking of the matter at all, I think that what he would have said would have been different from what it is alleged he said.There is nothing in the deed which seems to me to imply that the heirs succeeding in the estates should not only be liable as heirs, but also that they should be liable without relief against the executors of the preceding heirs. I think that there can be no doubt that the second Lord Macdonald was the proper debtor in this bond, so long as he lived, and that the creditors under it might have attached his moveable funds of every kind, wherever they were to be found, for payment. But when he died, did this right to attach his moveable funds expire at once with himself? I take it that the truster might have made a provision to the daughter of the eldest son, who had predeceased him. Suppose the granter had conceived this provision in favour of a daughter of his eldest son, predeceasing him, this daughter would have thus been the creditor of her uncle, a second son succeeding to

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As the case has happened, some of the parties here are both creditors under the provision and executors. I think it will not do to say that their being executors eo ipso subjects them to the claim; but I think that, so far as there is an excrescence of moveable funds over and above paying the debts of the second Lord Macdonald, they are liable pro tanto to the relief of this claim. I have no idea that because they were creditors of the second Lord Macdonald, and were also his executors, this claim thereby became extinct. That is absurd: they were just as much creditors as executors. By our old law an executor, who was also a creditor, had a preference, and was entitled to pay himself out of the executry. That has been altered, no doubt; but the executor still remains a creditor. It follows from this, as matter of necessity, that unless there is an excrescence to which these

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I think the claim of relief must be limited to the excrescence of the whole moveable funds left by Wentworth Lord Macdonald, over and above his debts; but I think to that extent the claim good.I see that the Lord Ordinary has thought, that if the whole estates had been unentailed, the question would have been very doubtful; and he founds very much on the analogy drawn from questions applicable to debts upon entailed properties. Now, I do not see the inference, that because the first Lord Macdonald declared that himself and his heirs succeeding to him in these estates should be burdened with the provision, that all claim against his funds, so soon as he died, did necessarily disappear, and that his executors were not liable.We have nothing before us as to the deed of entail, except one very short quotation; and there is no doubt in my mind, that that quotation gives no power to the heirs to burden the estate with debts. All it does say is, that the institute and other heirs should be entitled to grant reasonable annuities to younger children; but it confers no powers, as many entails do, to make these a burden upon the estate at all. The only effect is, that the irritant and resolutive clauses do not strike against the heir. No doubt, such a provision is a good debt against every person who succeeds to the estate. It stands as an entailer's debt, which, in common parlance, is said to affect the estate; but every body knows, that although the entailer's debt, in this sense, affects the estate, yet, like every other debt, it is due by the

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I think this case is to be judged of just like a personal debt, for which all the heirs are liable, but which does not exclude the right of the creditor to go against the funds of any heir who is really subject for that debt. The diligence can only be valid to the effect of securing the money, and not to that of carrying off the estate.”Lord Meadowbank. — “I concur with Lord Cringletie in the conclusion to which he has come. But at the same time, I apprehend that it is not the intention of the first Lord Macdonald which must regulate the question. I may state my opinion in one sentence. It appears to me that this estate was primarily liable, and if the estate was not relieved of the debt it appears to me that it was the intention of the last Lord Macdonald to leave it as a debt, for which the heir, and not his executors, was liable.”Lord Justice Clerk .— “Upon reading these papers, I have formed an opinion in favour of the interlocutor of the Lord Ordinary, and very much on the same grounds as stated by his lordship. I cannot permit my opinion to go on the grounds stated by Lord Meadowbank as to the intention of the late Lord Macdonald. We must look to the purpose for which the bond was granted, with reference to the marriage contract. After having made a deed, conveying the

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The Court adhered.Against these interlocutors an appeal was presented, and the original appellant, Godfrey Bosville Lord Macdonald, having died in the month of October 1832, and having been succeeded by his son Godfrey William Wentworth now Lord Macdonald, the present appeal was ordered to be revived upon his petition.

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Appellant .—The question in this case relates exclusively to the succession of the last Lord Macdonald, as no claim could lie against the executors of the first Lord Macdonald, and is one of Scotch law and of principle. The debt due by the late Lord Macdonald having been merely a personal obligation, and not having been made a real burden upon the estates, must be borne by the executor, and not by the heir in a question of relief between those two parties. It is not pretended that the debt was heritable, or secured on the estates; indeed, it is expressly found by the Lord Ordinary, and distinctly admitted in his note, that the debt was personal; and of this none of the judges appear to have entertained any doubt. That being the case, has the late Lord Macdonald done any thing whatever to exclude the established right of relief which his heir, by the law of Scotland, has from the executors of any personal debt which the heir may be called upon to pay? On this question the case depends. The rule of law is expressly stated by Mr. Erskine in these terms:—
“The law itself has divided succession into two branches, the heritable and the moveable, and as each of these ought to bear the burdens which naturally attend it, the heir is the proper debtor in heritable debts, because he succeeds to all the subjects upon which these debts are secured, and the executor is primarily liable in the moveable debts, because he is considered as heir in the moveable estate.”
The late Lord Macdonald was debtor to the respondents, his younger brothers and sisters,—debtor in an obligation which was personal. Now, knowing that, and knowing that if he makes no settlement they will succeed to his executry, he thinks it best to leave it to them, just because he is largely their debtor. A

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That such was a very probable view to pass through his mind, and that there is not one single scrap of evidence militating against such an inference, cannot be disputed. Thus, for aught that appears, the Court may in fact have deviated from the ordinary and

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Upon analyzing the opinions of the judges it will be seen that there is not one single ground upon which this personal debt is thrown upon the heir, without the established relief against the executor, which does not depend upon conjectural views of the intention of a party who died intestate without any sort of evidence of his own intentions.In cases of intestate succession, there can logically and upon sound principle be no room for speculation as to a party's intention. The law enables every man to regulate his own succession, and establishes certain rules and certain principles in case a party dies without expressing and giving effect to his own will. Now, that being the case, the law holds that there is no intention of the deceased, who has died intestate, to guide or influence the succession to his property, and on that ground his succession falls under general principles. There can be no such thing as a special case of intention in a case of intestate succession; such an idea seems a contradiction in terms. If the party wished any special rule to be adopted as to the succession of his affairs, it was his business, and within his power, to have expressed such an intention. Nay, the law holds that if he had entertained any such special intention he would have expressed it; and upon the assumption, therefore, that the deceased had no special intentions whatever, the law proceeds to distribute his affairs, and to regulate his succession upon rules and principles which have no sort of reference to his views or wishes; besides any attempt

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Respondents .—From the whole tenor of the bond of provision by the first Lord Macdonald, and the trust deed executed by him of the same date, 24th September 1794, and bearing reference to each other, it appears that the granter not only declared his intention, but expressed this in the most clear and explicit terms that could have been made use of, to make the provision of 30,000 l . in favour of his four younger sons a burden upon the family estates of Macdonald and Strath.In the personal bond of provision, the words of the granter are, “I do therefore hereby, with and under the provisions and conditions after specified, and over and above the other provisions settled upon my younger sons, out of my separate estate and effects, by a deed of this date, bind and oblige myself, and my heirs succeeding to me in my lands and estate of Macdonald, Strath, and others,”&c. to content and pay 7,500 l . sterling, to each of his four younger sons, and that at the first term of Whitsunday or Martinmas next and immediately following his death, with a fifth part of penalty and interest. This was the usual and appropriate style of a personal bond of provision, and was agreeably to the reservation in the entail. The term of payment came to be Martinmas 1795, and as

Footnote

1 Erskine, B. 3. T. 9. Sec. 48; Sandford on Heritable Succession, vol. ii. p. 49; Russel v. Russel , 23 Jan. 1745 (5211); Denham v. Denham , 8 March 1765 (5244); Mullo v. Mullos , 20 Dec. 1758 (5228); Campbell v. Campbells , 14 Jan. 1747 (5213); Sandford on Heritable Succession, vol. ii. p. 241; Russel v. Dall , Sandford on Heritable Succession, vol. ii. p. 244; Durie, 7 March 1629; Falconer, (Diet. 12, 487.)

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“That in the event of the decease of any of my said sons as said is, before marriage or majority, the provision hereby made in his or their favour, shall accresce and belong to Alexander Wentworth Macdonald, my eldest son or other heir succeeding to me in my lands and estate of Macdonald;”
which declaration confirms the intention of the granter to have been, that as the heirs in the family estates were to be liable for the provisions to the younger sons, on attaining to majority or marriage, so these heirs were to be relieved or reimbursed of that provision in case of the failure of any of the sons before either of these events: and again, the bond of provision “revokes all former provisions made by me in favour of my younger children out of my said estates of Macdonald and Strath,” but without prejudice to the other provisions settled upon them, out of my separate estate and effects, by a deed of this date. These expressions explicitly declare the provisions to have been made payable out of the estates of Macdonald and Strath.The trust deed of the same date proves the same intention. It conveys to the trustees all lands and heritages, “other than the estates of Macdonald and Strath;” and it declares that the provisions to the

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The late Alexander Wentworth Lord Macdonald was not the proper or primary debtor, in regard to the balance due under the bond of provision in question. The heirs who have succeeded to the estates of Macdonald and Strath, and who for the time have enjoyed these estates, are the proper and primary debtors, by whom the balance due to the respondents under this bond of provision must be paid.The late Alexander Wentworth Lord Macdonald was not the personal debtor for the sums payable by the bond of provision; it was not a debt contracted by himself, and for which his representatives could alone be made liable. On the contrary, he was responsible for the payment of this debt, merely as one of the heirs who succeeded to the estates of Macdonald and Strath. The debt in question was created a burden upon the heirs succeeding to these estates; and it will be observed the obligation was not upon the first heir alone, but upon all the heirs who might succeed to these lands. It forms a burden upon, and, strictly speaking, is inseparable from the right of succession, and is thus to every practical effect, in so far as heirs are concerned, a real burden upon the property.

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Where a proprietor, by his settlement, expressly appoints certain sums of money to be paid by the heirs succeeding to him in particular estates, he charges those estates with the payment of the money, as clearly, nay much more unequivocally than if he had made the sums of money real feudal burdens upon the estate in the most technical form, and at the same time had obliged his heirs and executors personally to pay the debts. The rule, in all cases, for determining by whom such debts are primarily to be paid, is the will of the testator, express or implied. When a person says that such a sum is to be paid by his heirs succeeding to such an estate, how can it be doubted that such heirs are the primary debtors against whom a claim for payment will lie?That this is the doctrine of the law of Scotland might be established by reference to many authorities. Thus Lord Stair says, “Heirs are not convenable at the creditor's option, as in the case of heirs and executors; but they have the benefit of an order of discussing. Thus, first, debts, and obligements relating to any particular lands or rights, and no other, do in the first place affect the heirs who may succeed in these lands or rights, before the heir-general. So an obligement obliging the defunct's heirs of line or tailzie, so soon as they should come to his estate, was found to affect the heir of tailzie who came to that estate, without discussing the heir of line; Hope (de hæredibus), Lyon contra Scott. So an obligement obliging a debtor, and his heirs male succeeding in such an estate (which was provided to heirs male), and all other heirs and successors, was found to burden the heirs male before the heir of line or executors;

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And again, Lord Stair says, “There is likewise a petitory action founded upon the mutual obligations of heirs and executors for relief of the moveable debts whereby the heir is distressed, and of the heritable debts whereby the executor is distressed; for creditors have action against either or both of them, for any debt of the defunct. But creditors have not the same access against heirs of line, male, tailzie, and provision, there being an order of discussion among them, that the posterior heir cannot be distressed till the heirs prior in order be discussed, unless the defunct have burdened one special heir only.”To the same purpose Mr. Erskine says, “Though proper heirs are all at last liable universally for the debts of their ancestor, yet they must be sued in a certain order. Some heirs are liable in the first place, and others not till those who are primarily liable have been discussed. Thus in the case of obligations relative to a particular subject, the heir who succeeds in that subject may be sued without discussing any other heir; for whoever succeeds in a right must be the

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Mr. Erskine lays it down as a clear proposition, that the conveyance of a debt affecting an entailed estate; in favour of the heir of entail and his heirs whatsoever, does not import a perpetual extinction of the debt. The debt is indeed dormant during the life of the disponee; but if the heir at law and the heir of entail happen, at any time after, to be different persons, the ground of the extinction, or rather of the suspension, ceaseth, and consequently the debt will revive in the person of the heir at law against the heir of entail; for it is considered as a separate estate, in the absolute power of the heir who purchased it, and affectable by his creditors. Nay, though the deed assigning the debt to the heir of entail should also contain a discharge of it in his favour as having made the payment, the discharge hath not the effect of extinguishing it confusione, seeing that part of the deed which assigns it is a sufficient indication that it should still continue to subsist in his person.”The second Lord Macdonald, upon succeeding to the lands of Macdonald and Strath, became clearly liable to this burden. So far as the late Lord Macdonald left any part of this burden undischarged, he must be held to have indicated his intention that the future heirs succeeding to the estates of Macdonald and Strath should continue burdened, as he himself was, in terms of the

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This is the rule by which all questions of this kind must be determined. A personal obligation is, no doubt, primâ facie binding upon executors, and is payable out of the personal estate. But the granter of the deed may, if he pleases, declare and appoint that this personal obligation shall affect his heirs male or his heirs of line, or his heirs succeeding to him in particular estates; and his declared will, in regard to this matter, will ascertain which class of his heirs or representatives shall be primarily liable for the fulfilment of this obligation. The will or presumed will of the proprietor is the rule by which all questions of relief between heirs and executors must be ultimately determined. The rule of giving effect in questions of relief to the presumed or express will of the deceased proprietor has been long recognised in England; and there are many cases in which it has been ruled in the Courts of that country that the personal estate may be exempted from liability for personal debts, without any express words, provided there be

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It can never for a moment be doubted that a direct action lies at the instance of the younger children of the first Lord Macdonald against the present Lord Macdonald, as the heir succeeding to the estates of Macdonald and Strath, for the payment of the sums due upon the bond of provision. This was no proper or personal debt of the late Lord Macdonald. It was due by him merely as one of the heirs succeeding to these estates; but, as already mentioned, he was entitled to keep it up against the future heirs, by paying it upon assignation. He has done the same thing by allowing

Footnote

1 10 Ves. 494.

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It has been said, indeed, that the first Lord Macdonald bound himself, and his heirs succeeding to the estates of Macdonald and Strath, to pay the sums in question; and it has been suggested, that the present Lord Macdonald is not one of the heirs of the first Lord Macdonald, but only an heir succeeding to the second Lord Macdonald. It need scarcely be observed, that this is a mere play upon words; and that, in legal phraseology, the present Lord is the heir of the first Lord Macdonald, in the estates of Macdonald and Strath, as much as the second Lord. But suppose it were correct that the present Lord Macdonald were to be held merely the heir of the late Lord in the estates of Macdonald and Strath, how would this vary the question at issue? The last Lord was liable for the sums in question, not as personal debts contracted by himself, but solely as burdens consequent upon his taking up the succession to the estates of Macdonald and Strath. His right to these estates, there can be no question, was burdened with the payment of the bond of provision;

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Lord Brougham :—My Lords, This case relates to the execution of certain bonds, and their operation, whether on the real or personal estate. The noble and learned Lord who heard the argument in its commencement, but who was prevented by the pressure of business from hearing it throughout, entertained with myself some doubts upon the grounds of the decision in the Court below; but on a further consideration of the case those doubts have been entirely removed, and I am clear that the decision of the Court below ought to be affirmed. I think, on consideration, that it is reconcileable with the authorities; at all events, I am quite certain, that, on the principles of the law as it now exists in Scotland, the decision is well founded. I would therefore move your Lordships that the interlocutors be affirmed.

The House of Lords accordingly ordered and adjudged, “That the said petition and appeal be, and is hereby dismissed this House, and that the interlocutors therein complained of, be, and the same are hereby affirmed.”Solicitors: Macdougall and Bainbridge— Spottiswoode and Robertson,—Solicitors.

Footnote

1 3 Stair, 5, 17; 3 Ersk. 4, 52. and 4, 27; Blair v. Anderson , 18 Feb. 1663 (3,571); Kerr v. Turnbull , 15 Feb. 1758 (15,551); Gordon v. Sutherland , 29 Jan. 1731 (11,534); Temple v. Gairns , 22 Feb. 1706 (15,355); Crawford v. Hotchkis , 11 March 1809 (Fac. Coll. xv. 258, No. 88.); Rose v. Rose , 2 April 1787 (Fac. Coll. ix. App. 17.); Bootle v. Blundell , 19 Ves, 494; Gordon v. Maitland , 1 Dec. 1757 (10,050).