Scottish Court of Session Decisions

Subject_1 TESTAMENT.

Galloway, Petitioner

Date: 12 January 1802
Case No. No. 30.

The words assign, transfer, and make over, goods, gear, debts, and sums of money, used in a testament, not effectual to convey a debts secured by adjudication.

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

Walter Macfarlane of Macfarlane, and his brother William, were debtors to Mrs. Helen Spottiswoode, widow of James Garthshore, writer to the signet, in two sums constituted by bonds, granted in February, 1767; the one for ₣.155 Sterling, and the other for an annuity of ₣.50 Sterling during her life. An adjudication was led upon the first, in 1781, over the estate of Macfarlane.

Of this date, (10th November, 1786,) Mrs. Garthshore ” nominated and appointed William Galloway, merchant in Edinburgh, not only to be my sole executor, but also my universal legatary, and intromitter with the whole goods, gear, debts, and sums of money that shall pertain and belong, and be resting and owing to me at the time of my death, by whatsoever person or persons, in virtue of bonds, bills, or any other manner of way ; all which I hereby assign, transfer, and make over to and in favour of the said William Galloway; but under the burden always of the payment of my just and lawful debts, funeral-charges, and the legacies under-written, which I do hereby legate and bequeath to the persons following,” &c.

Among these legacies were the two following: “ To Miss Helen Macfarlane, daughter of William Macfarlane, Esq. the sum of ₣.150 Sterling, and to Miss Rachel Macfarlane the sum of ₣.150 Sterling; and I appoint the legacies above written to be paid out of the first and readiest of my means and effects; excepting the legacies to Helen and Rachel Macfarlane, which shall not be paid until my executor shall have recovered as much of the annuities or other debts due by the said William Macfarlane to me as will satisfy the same.”

Conceiving that this was an explicit declaration, that the bond upon which adjudication had followed was specially conveyed by this settlement, that being the only other debt besides the annuity due by Macfarlane to Mrs. Garthshore, Galloway urged this claim in a process of multiplepoinding, in which Mr. Spottiswoode of Spottiswoode, who had served heir in general to her, was (20th January, 1801,) preferred by the Lord Ordinary. The universal legatee reclaimed, and

Pleaded: An heritable subject may be effectually settled in a testamentary deed, provided the language employed be that of a conveyance inter vivos or de præsenti; Erskine, B. 3. Tit. 8. § 20.; Henderson against Henderson, 31st January, 1667, No. 6. p. 15927.; Douglas against Allan, 11th July, 1733, No. 15. p. 15940.; Brown against Brand, 4th December, 1735, No. 17. p. 15941.; Mitchell against Wight, 21st November, 1759, No. 32. p. 8082.; Ross against Ross, 2d March, 1770, No. 15. p. 5019.; Robertson against Robertson, 17th June, 1785, No. 25. p. 15947.; Lamont against Creditors of Lamont, 4th December, 1789, No. 53. 10230.; Trotter against Hale, 21st May, 1790,(Not reported; see Appendix.)

In the present case, Galloway is appointed “executor, universal legatary, and intromitter with the whole goods, gear, debts, and sums of money,” belonging to the testatrix; and then follows a conveyance of them de præsenti, “all which I hereby assign, transfer, and make over.” The words of conveyance in Robertson’s case were, “dispone, assign, and convey;” but the term “transfer” does not seem to be less dispositive in its meaning than that of “convey;” nor “make over” less expressive of conveyance than “dispone.” The word “assign” is common to both, and is of itself sufficient to express the conveyance. All these are alike dispositive words, as they are all alike verba de præsenti; nor does there seem to be any peculiar or technical phrase, which is exclusively essential to the conveyance of an heritable subject.

The intention of the granter is an essential circumstance in a case of this kind. Now, when she makes over all her debts, the debts due by the Macfarlanes can not be meant to be excluded. Though secured by real diligence, they must still be held as debts, and are still comprehended under that general term. It was so, found in Robertson. Besides, here there is an actual specification of this very debt—“The legacies to Helen and Rachel Macfarlanes shall not be paid, until my executors shall have recovered as much of the annuities or other debts due by the said William Macfarlane to me as will satisfy the same.” Now, Mrs. Garthshore knew they were owing no other debts to her besides the annuity, except this bond, followed by adjudication; so that the one expression is precisely tantamount to the other.

The Court doubted the intention of disponing this bond; but were satisfied that the proper terms of conveyance of heritage were not used, besides that the words “goods, gear, debts, and sums of money,” were not sufficiently descriptive of an adjudication; Ross against Ross, 2d March, 1770, No. 15. p. 5019.

The petition, accordingly, (12th January, 1802), was refused, without answers. Another reclaiming petition was refused, 4th February, 1802.

Lord Ordinary, Ankerville. For the Petitioner, Stuart. Agent, Ja. Balfour, W. S. Clerk, Colguhoun. Fac. Coll. No. 13. p. 27.