Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION V.

Accepting a Disposition with the Burden of Debts.

Mercer
v.
Scotland

Date: 6 June 1745
Case No. No 214.

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A person, passing by his brother and heir at law, disponed to his sister, and her heirs, all debts owing to him, heritable and moveable, and all his estate, goods, and gear, which should belong to him at the time of his death; with this proviso, That the right, and every person who should claim thereby, should be burdened with the payment of all his just and lawful debts; and he reserved a power to alter at any time in his life. After the death of the disponee, an only son of the sister having served himself heir of provision in general, it came to be questioned between him and a creditor of the disponer, Whether or not he was universally liable upon the clause burdening him with payment of the disponer's debts? It was admitted, that such burdens in dispositions to particular subjects were understood as only intended for the security of creditors; but it was argued, That the acceptance of a man's whole estate under a general conveyance, must infer an universal passive title. The Lords found, That as the defender was not alioqui successurus, he was not universally liable, but tantum in valorem of the subjects disponed.

Fol. Dic. v. 4. p. 45. Kilkerran.

*** This case is No 119. p. 9786.