Scottish Court of Session Decisions

Subject_1 SERVICE AND CONFIRMATION.
Subject_2 SECT. I.

In what Cases is a Service requisite to a nominatim Substitute. - Substitution in Moveables. - Subjects whether to be taken up by Service of Confirmation?

Sir John Sinclair
v.
Helen Gibson

1728. January
Case No. No. 8.

Bonds heritable by destination, not confirmable by an executor-creditor.

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The now deceased Sir Edward Gibson was fiar of several bonds, “devised to him and his heirs-male; which failing, to his sister Helen Gibson and her heirs-male; which failing,” &c. anent which bonds the question occurred, If they were confirmable by an executor-creditor of the defunct.

Sir John Sinclair, the executor-creditor, pleaded upon the act 32. Parl. 1661, in which sums lent out upon bond, containing clauses for payment of annualrent and profit, were ordained to be holden and interpreted, moveable bonds, excepting the cases following, viz. that they bear an express obligement to infeft; or that they be conceived in favours of heirs and assignees, secluding executors; so that however these bonds be destinated, they continue moveable quoad creditorem, as coming under neither of the exceptions in the act. If a subject be otherwise moveable, a destination alters not its nature, being only intended to point, out the successor; and though that successor, is preferred to the executor of the defunct, that flows from the will of parties, not from the nature of the subject, which remains moveable, insomuch that the creditor-fiar may test upon it; and consequently it is confirmable by his executors-creditors. This seems to be Lord Dirleton's opinion, and is expressly Sir James Stewart's upon the article, Bond heritable, p. 17, where he lays down the rule, “That a substitution does not so far alter the nature of a bond, as to make it heritable, but that the marks of a bond's being heritable or moveable, should be taken from the act of Parliament; that is, where there is no clause for infeftment, or expressly secluding executors, such bond should be esteemed moveable and testable, and consequently confirmable by the executor-creditor.”

On the other hand, it was contended for Helen Gibson the substitute, No good reason can be assigned, why this case should not be brought under the exception in the act, of bonds “conceived to heirs and assignees, secluding executors:” For are not the bonds in question conceived to heirs and assignees, secluding executors, truly as much as these very words, were expressed in the bonds? There is no charm in the words “secluding executors;” and it is not to he imagined, that the Legislators designed to put the difference of a subject's being heritable or moveable, upon the form of using certain indifferent words, neglecting the true state of the conveyance, which is the thing that falls naturally to determine the point. But, 2do, There is another medium upon which this question falls to be determined, viz. That these bonds can only be carried by service, which is contended to be incompatible with confirmation of any sort, whether of nearest of kin, or creditors. There are two methods known in our law of making up titles to a defunct's effects, confirmation and service. The last is necessary in all cases where the person claiming is to represent the defunct, where he derives his right from him, and has no title but as coming in his place; there being no other form known in our law of representation, but by service; so that service is not only necessary in the conveyance of heritable subjects, but in all subjects heritable or moveable, where a succession is established, and where of consequence the right can only be carried by representation. There are other subjects which are claimed, not by any right derived from the defunct, but jure proprio; which is the wife's and children's case, with relation to the moveables: For even the nearest of kin take not the defunct's third, as representing him, but qua nearest of kin, and in their own title; the law having established, “That the dead's part belongs to the nearest of kin qua such, unless otherwise disposed upon by the defunct.” And this according to the well-known principle, “That there is no representation in moveables.’ Now in all these confirmation takes place, which has no relation to a succession by representation, but belongs to the office of executry: For since it is inconvenient, where so many have different interests in a perishable subject, that each be allowed to, put forth his hand, the law has prudently introduced, for the benefit of all, a common trustee, who alone is to intromit and be accountable. If this be a just view of the affair, it was even an extension to allow a creditor to confirm, who has no special interest in his debtor's moveables, more than his heritage; indeed a necessary extension, where there is not another executor, because in these circumstances no other form of diligence has been devised whereby creditors can affect the defunct's moveables. But since the effect of a destination is to establish a succession, a representation, were the destination even of a medal, jewel, or other simple moveable subject, it must go by a service, and is incapable of confirmation; since nobody can have an interest in it jure proprio, but only as coming in place of the defunct proprietor; and if not confirmable at the instance of the nearest of kin, far less by a creditor, who in these circumstances wants not a habile diligence to affect the subject; for here he has the substitute whom he can charge to enter heir, and upon his renouncing, the way is patent to an adjudication of the subject, as a hæreditas jacens.

“The Lords found the bonds in question not confirmable.”

Fol. Dic. v. 2. p. 366. Rem. Dec. v. No. 103. p. 197.