Gardiner and Another v. Murray Stewart's Trustees [1908] ScotLR 800 (19 June 1908)

Gardiner and Another v. Murray Stewart's Trustees [1908] ScotLR 800 (19 June 1908)

The obligation to purchase the waygoing sheep stock at valuation was a personal obligation undertaken by the deceased lessor, not limited to his capacity as heir of entail. As such, it was binding on his executors, who were required to implement the obligation and appoint an arbiter. The lease did not expressly limit the obligation to the proprietor for the time being, nor did it exclude liability of the executors. Precedent supports the transmissibility of such obligations against executors but not against successors in title unless expressly stated.

Citation
[1908] ScotLR 800
Parties
Petitioners (tenants): Robert Gardiner and another; Respondents (trustees/executors): Hon. W. J. Hewitt and others, Trustees and Executors of H. G. Murray Stewart of Cally
Jurisdiction
Scotland
Judgment Date
19 June 1908
Procedural Posture
Petition Under Arbitration (scotland) Act 1894 / Inner House, First Division, Court of Session – Decision on Merits After Reclaiming Motion
Outcome
Petition allowed. Respondents (executors) held bound to appoint an arbiter.
Legal Topics
Entail, Lease Obligations, Transmissibility of Obligations, Arbitration in Leases
Property Law Succession Law Contract Law Entail Lease Obligations Transmissibility of Obligations Arbitration in Leases

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Parties

Robert Gardiner and another

Petitioners (tenants)

Hon. W. J. Hewitt and others, Trustees and Executors of H. G. Murray Stewart of Cally

Respondents (trustees/executors)

Procedural Posture

Petition Under Arbitration (scotland) Act 1894 / Inner House, First Division, Court of Session – Decision on Merits After Reclaiming Motion

Legal Issues

  1. 1 Whether the obligation to purchase waygoing sheep stock at valuation was binding on the executors of the deceased lessor, or only on the heir of entail or proprietor for the time being.
  2. 2 Whether such an obligation is personal and transmissible against executors or real and binding only on successors in title.

Ratio Decidendi

The obligation to purchase the waygoing sheep stock at valuation was a personal obligation undertaken by the deceased lessor, not limited to his capacity as heir of entail. As such, it was binding on his executors, who were required to implement the obligation and appoint an arbiter. The lease did not expressly limit the obligation to the proprietor for the time being, nor did it exclude liability of the executors. Precedent supports the transmissibility of such obligations against executors but not against successors in title unless expressly stated.

Court Disposition

Petition allowed. Respondents (executors) held bound to appoint an arbiter.

Orders

  • Recalled the Lord Ordinary's interlocutor.
  • Appointed W. J. Sproat to act as arbiter along with George G. B. Sproat for the valuation reference.