Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION V.

Effect, in Scotland, of personal Obligation executed in a Foreign country, according to the Law of the place.

Mrs Sarah Drummond, and her Attorney, Petitioners

Date: 7 June 1798
Case No. No 37.

The heir of a person domiciled in England, is liable for heritable debts on his landed property in Scotland, without relief from his executor, although, by the law of England, such debts would have ultimately fallen on the latter.

Click here to view a pdf copy of this documet : PDF Copy

David Drummond, merchant in London, died there, possessed of a landed estate in Scotland, over which he had granted an heritable security. Having died intestate, his brother James, likewise of London, succeeded as heir to the landed estate, and he, along with his mother and sisters, were jointly entitled to the executry.

James, with consent of his mother, took out letters of administration. He afterwards sold part of the landed estate in Scotland, and paid the heritable debt, for which he was allowed credit in the account of the personal property rendered by him in the prerogative court.

His mother and sisters afterwards brought an action against him, concluding, that the heritable debt should not affect their share of the executry.

James Drummond having died during the dependence of it, his widow, Mrs Sarah Drummond, as guardian to his son, and her attorney, sisted themselves as defenders.

The Lord Ordinary ‘found, that by the law of Scotland, when a sum of money is secured upon lands by an heritable bond, and infeftment, the lands are held to be the principal debtor; and, in respect that the estate belonging to David Drummond, over which the heritable bond in question is granted, was taken up by James Drummond as heir to his brother, and that the same is of much greater value than the sum in the heritable bond, found, that James Drummond is ultimately liable for payment of that heritable bond, without relief against the personal estate of David Drummond.’

Against this judgment, the defenders, inter alia,

Pleaded; By the law of England, this debt would have been ultimately a burden on the executry of David Drummond; and as it is now settled, that succession to personal property is regulated by the law of the domicile of the deceased; 7th June 1791, Hog against Hog, affirmed on appeal, Div. 10. h. t. 30th November 1791, Durie against Coutts, Ibidem; the burden to which it is subject must be fixed by the same rule. On this principle, it has been found, that the heir of a person domiciled in England may claim part of his moveable succession, without collating his heritable property in Scotland; House of Lords, 11th March 1793, Hay Balfour against Scot, Div. 10. h. t.; David Drummond might have effectually declared this debt a burden on his executry by will; and the presumption is, that he intended it should be so, when, by dying intestate, he allowed his succession to be regulated by the law of his domicile.

Two reclaiming petitions were, (17th May and 7th June,) refused without answers.

Lord Ordinary, Justice-Clerk Braxfield, For the Petitioners, J. W. Murray. Clerk, Menzies. Fac. Col. No 81. p. 187.