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?

Helen Hill
v.
Maxwells

Date: 5 December 1665
Case No. No. 2.

A clause of substitution in a legacy, providing the fathers' free goods to two daughters, and failing of either of them to the other, the one dying, the portion was found to accresce to the other, without the necessity of confirmation.

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In an account and reckoning between Helen Hill, relict of John Maxwell in Glasgow, who was one of the tutors named by John to his bairns, and Mr. Robert and George, Maxwells, his brethren, who succeeded the daughters, being dead, John by his testament leaves his two daughters, and failing of either of them, by decease to the other, his universal legatars. One of the daughters died pupil, and the other shortly after her age of 12 years, nominated the said Helen her mother, universal legatrix; whereby Helen craved the universal legacy of both the daughters. It was alleged, that the last daughter, not having confirmed herself executrix to the first, the first share was never established in her person, and so could not be transmitted by her testament, but belonged to the nearest of kin of the first daughter, viz. the said Maxwells. It was answered, That this being a substitution of each of the two daughters, to other, nomination, by the death of the one it accresced into the other, ipso facto, without confirmation; as in the case of bonds of provision, payable to the father, and by decease of him, to such a bairn named, albeit the father be fiar, and the bairn but heir-substitute, it needs not confirmation; but the bairn may summarily charge or pursue. The Lords found no need of confirmation, but that it did accresce to the second daughter upon the death of the first, and so was carried by the second's testament.—In this account, Mr. Robert, as heir, pursuing for the heritable bonds, the tutrix answered, that she ought to have allowance of what was wared out upon repairing of the tenement in Glasgow. It was answered, That she as tutrix, ex officio, was obliged to exhaust the moveables first, one person being both heir and executor, and not to exhaust the heritable bonds that bore annual-rent, and to let the other lie unprofitable, and now to apply it to her own use by her legacy. It was answered, That it was employed upon the heritage, and so was profitable to the heir only, being employed upon the house, and that by a warrant, the heir being then under tutors, to repair it out of the first and readiest of the defunct's estate.

“The Lords found that article relevant, to be deducted out of the heritable estate,” See Tutor and Pupil.

Fol. Dic. v. 2. p. 367.Stair, v. 1. p. 322. *** This case is also reported by Newbyth:

Umquhile John Maxwell, by his latter will, having left his third in legacy to his two daughters, Janet and Bessie, equally betwixt them, and failing of the one to the other, and both of, them surviving their father, and Janet having deceased before Bessie, it was questioned, Whether or not Janet's half of that legacy did accresce to Bessie without confirmation, and so belonged to Helen Hill, who was universal legatar to Bessie; or, if it required confirmation, to establish it in Bessie's person, and so belonged to Mr. Robert and George Maxwell, as nearest of kin to Janet, to whom they were executors. The Lords found there was no necessity of a confirmation, in regard of a substitution; but found that it would be liable to Janet's creditors within the same process. The Lords found, that Helen Hill, who was universal legatar to Bessie Maxwell, who deceased before Janet Maxwell, and, to which Bessie Mr. Robert Maxwell was heir, might, repair the tenements which fell to the pursuer as heir, by uplifting other moveables or heritable sums, since it was in rem versum hæredis.

Newbyth MS. p. 42.