Scottish Court of Session Decisions

Subject_1 EXECUTOR.

Sir Archibald Grant
Mrs Burrows and Her Sisters

1753, July 23.
Case No. No. 21.

Executor in England, whether obliged to account in Scotland?

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Sir Archibald Grant became debtor to Colonel Burrows by an heritable bond for L.2000 sterling, which he conveyed to Cartwright his father-in-law, who was thereupon infeft in Sir Archibald's estate in Scotland; and on Cartwright's death, (Colonel Burrows being also dead) Mrs Burrows succeeded as one of the heirs-portioners to her father, and sued Sir Archibald Grant upon the bond, who pleaded compensation on debts due by Burrows. The Court found that there was sufficient evidence that the con-veyance by Burrows to Cartwright was in security of L.3000 sterling, that Burrows was by marriage articles bound to secure to himself and his wife and longest liver. Therefore Sir Archibald afterwards alleged, that Mrs Burrows had administrated to her husband, and recovered out of his effects the L.3000 due to her; and therefore the L.2000 was now a simple trust for behoof of Burrows' heirs, and that the compensation takes place. Answered, Mrs Burrows is not obliged to account in Scotland for her administration in England, which must be judged by the laws of England, and where Mrs. Burrows can have the proper compulsitors to bring the creditors or others having interest into the field, and quoted a judgment of the House of Lords in the case of the late Dutchess of Hamilton, Replied, That is no more than must happen in many other cases where the subject in dispute is touching negotiations in England; and Sir Archibald quoted a judgment of this Court in July 1732, White against George Skene, (Dict. No, 54.p.4844, The Court was much divided, and delayed the cause till either party should get the opinions of learned counsel in England, which they accordingly got; viz. Mrs Burrows got the opinions of Mr Solicitor Murray and Mr Wilbraham, and Sir Archibald that of Messrs Evans and Hodgson. Mr Murray was of opinion, that if such accounting should become necessary incidentally to a question before the Court of Session, the enquiry might be made, making all the allowance which would be made in England; and the other three agreed in substance with him. However, the Court was still much divided, and upon the question it carried, That she is not bound to account in Scotland; (6, and the President, against 5;) but then they found that action must stop here, for such time as Sir Archibald may sue her in England, and for that they allowed two years. See Forum Competens.

See Heir and Executor.

See Service and Confirmation.

See Heritable and Moveable.

See Liferent and Fiar.

See Renunciation to Be Heir.

See Legitim.

See Succession.