M'Gaws v. Galloway

This was an appeal in conjoined actions raised in the Sheriff Court of Dumfries and Galloway at Stranraer, at the instance of William, James, and Alexander M'Gaw against James Galloway, as executor-nominate of the deceased John Corkran, or otherwise as vitious intromitter with his goods, and also as an individual, to recover legacies of £50, £50, and £20 bequeathed to them respectively by Corkran.

In these circumstances the pursuers raised these actions for payment of the amounts of their legacies.

The defender maintained that the amounts expended by himself and by Mrs M'Culloch (in whose right he now was) in alimenting the testator were debts of the estate which were preferable to the pursuer's legacies under the will. He explained that, reckoning these claims as debts, the estate of Corkran was exhausted, and that there was no fund out of which the legacies to the pursuers could be paid.

He pleaded, inter alia —“(4) The sums expended by Mrs M'Culloch and the defender respectively on behalf of or paid to the deceased, being debts due from his estate, are preferable to the legacies bequeathed in his settlement, and the defender in his own right, and as assignee of Mrs M'Culloch, is entitled to plead these debts, more especially the debt constituted by the foresaid decree, and paid as aforesaid, to the extent of the payment at least, against the pursuers' claim.”

A proof was led. There was evidence that Corkran considered himself under an obligation to the defender and Mrs M'Culloch for the aliment they had given him, and when in the belief that he was entitled to succeed to Miss Milwie expressed himself as pleased that he would now be able to repay them.