Warrandice – Heir and Executor – Catholic Security
By a trust-disposition and settlement, executed in 1853, the granter conveyed his whole estate, heritable and moveable, to trustees, for the purpose, inter alia, failing heirs of his body, of conveying his estate of M, and his other lands in the county of L, to his brother, and the heirs of his body, under the fetters of an entail. By the same deed he directed his trustees, failing his own issue, to make over the whole residue of his estate to the person who should succeed to M.
By a codicil, dated in 1876, he disponed to his wife, in the event of her surviving him, the lands of B and A (which were among the lands originally directed to be entailed), and bequeathed to her the whole residue of his estate. By a previous deed he had appointed his wife his sole executrix. The disposition of B and A contained a clause of warrandice in ordinary form under the Titles to Land Consolidation Act 1868 (31 and 32 Vict. cap. 101), which imports absolute warrandice. In 1882 the truster granted a bond and disposition in security for pounds 250,000 over the estates of M, B, and A.
On the truster’s death his widow maintained that no part of the debt of pounds 250,000 was payable out of B and A, or out of residue, but that the whole debt was entirely chargeable against M.
Held ( affirming the judgment of the Second Division) that the truster had in imposing the obligation of warrandice used words limited in their significance to personal obligation, and that his widow, as personal representative and executrix, must herself discharge the obligation of warrandice.
Judges:
The Lord Chancellor (Halsbury), Lord Watson, and Lord Macnaghten
Citations:
[1887] UKHL 454, 25 SLR 454
Links:
Jurisdiction:
Scotland
Wills and Probate
Updated: 29 June 2022; Ref: scu.636757