Scottish Court of Session Decisions

The late Adam Amoss, by his latter will, appointed his agent, Alexander Greig, W.S., and three other friends, to be his executors and administrators, it being specially declared that they should not be liable for omissions, nor singuli in solidum, but each for his own actual intromissions only. He bequeathed various legacies to the extent of upwards of £5000, including £50 to each of the executors. Some of the legacies were to minors, and these were declared not to be payable till the legatees should respectively attain majority. The residue, after payment of debts and legacies, was directed to be divided among certain individuals, as his residuary legatees, including one of the executors. The testator died in January 1832, leaving about £8200 of personal estate, whereof £7800 was deposited with the branch of the Bank of Scotland at Dumfries on two deposit receipts, the one for £5000, the other for £2800. At a meeting of the executors held on the 23d March, 1832, it was resolved to pay certain of the legacies, and Greig was directed to look out for a proper security for the sum (amounting to £1500) necessary to secure the provisions in favour of those legatees who were in minority, and also a small annuity. Next day the money deposited in the bank was uplifted by three and a quorum of the executors, who granted a discharge to the bank, and immediately redeposited £5000 in name of the executors. The remaining £2800 was left in the hands of Greig for the purpose of discharging funeral expenses and other debts, together with the legacies authorized to be paid, and vesting £1500 in security to answer the legacies not yet payable. Of date 18th May thereafter, Greig wrote the other executors, that for this sum he had “got a very desirable security, yielding an interest of four per cent,” and stating that he would bring out the documents the first time he came out from Edinburgh. In November, the executors uplifted the £5000 deposited as above mentioned, paid the remaining legacies which had fallen due, and distributed the residue among the residuary legatees, the £1500 left in the hands of Greig to be vested in security being sufficient to answer the legacies payable to minors, when these should become due. In point of fact, Greig never invested this money, and the other executors never took any steps for ascertaining whether he had done so or not. His affairs subsequently became embarrassed, and the pursuer Grieve, one of the minor legatees, and to whom a legacy of £400 had been bequeathed, on his attaining majority, raised an action for payment against Greig and the other executors. These last defended themselves, on the ground that they were not responsible for Greig's misappropriation of the £1500, which he ought to have invested.

On the other hand, Grieve maintained:—

“1. That the defenders, as executors and intromitters with the estate, were liable, in terms of the deed of settlement, to make payment to him of the principal sum of £400 sterling, with interest thereon from Martinmas, 1832, till paid,

“2. That in accounting with him, the defenders were not entitled to take credit for any sums paid by them to Mr Amoss's residuary legatees, whose right to draw any thing under his settlement was necessarily postponed to that of his special legatees.

“And, 3. That the defenders having, according to their own statement, without any necessity or any plausible pretext, uplifted a sum of money deposited by the defunot with the branch of the Bank of Scotland at Dumfries, and placed that money in the bands of Mr Greig, their co-executor; and having failed for a course of time to satisfy themselves that Mr Greig had lent out the money on sufficient security, were not entitled, in accounting with the pursuer, to take credit for the money so paid to Mr Greig.”

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Decerns against the defender, Alexander Greig (for whom no appearance was made at the debate), in terms of the conclusions of the libel; and as to the other defenders, finds that they, having, on the 24th day of March, 1832, needlessly uplifted and drawn out of the bank at Dumfries a sum of £1500, for which they were fully aware that there was no immediate occasion or means of investment, and placed the same, without any security or obligatory document, in the hands of their co-executor, the said Alexander Greig, under a general instruction to him to look out for an eligible investment for the said sum, and no such investment having been made, and the said sum not being now accessible in the hands of the said Alexander Greig, the said defenders are not entitled, in accounting to the pursuer for their intromissions with the said sum, to take credit for, or discharge themselves by, the payment or delivery over of the said sum to the said Alexander Greig; and, therefore, repels the defences maintained for the said other defenders, and decerns against them also in terms of the conclusions of the libel: Finds the whole defenders liable in expenses.”