Scottish Court of Session Decisions

The late George Bell was born in the island of Guernsey, and died domiciled there. He had invested various sums on heritable security in Scotland, the rights being taken in name of his brother-in-law, Alexander Young of Harburn, W.S., in trust for him. By his directions, Alexander Young, in November, 1829, conveyed these sums to himself and William Young Hrries of Spottes, W.S., and Alexander Craig, residing in Edinburgh, as trustees, it being declared in the body of their right, that “these presents are granted by me at the request of the said George Bell, my constituent, to and in favour of the said persons therein and above written, to be held by them in trust, for the uses and behoof of the said George Bell, so as the foresaid sums of money may be recovered, and applied and disposed of in such way and manner as he may direct and appoint during his life, and by any last will or settlement of his estate, funds and effects, made or to be made by him, according to the laws and practice of the country wherein the same has been or may happen to be executed; which directions, application or distribution of the said debt and sums of money, in manner foresaid, the said trustees and their foresaids shall be bound and obliged, and by acceptation hereof bind and oblige themselves, and their foresaids, to implement and fulfil in all respects.”

In February, 1830, George Bell executed his settlement at Guernsey, conveying his whole effects to his two executors, William Bell and Thomas Bell, both domiciled in Guernsey. The settlement directed “all debts due to me to be received by my executors;” and the executors were empowered to act “for the interest of my estate, as I might have done during my natural life.” The settlement bequeathed various legacies, and requested that the “executors will use all diligence and efforts to make my property available, so as to pay off all the afore-named legacies, and any other that I may think proper to add, with as little delay as possible; as also, for the division of the residue of my property, which is my wish, will, and intention, should be divided as follows.” Among the residuary legatees, eighteen in number, were Alexander Young of Harburn, and his family. Another was a nephew of the testator, named William Anthony Bell, formerly stockbroker in London, now residing in Brussels. His share of the residue was to be liferented by his father, Charles Bell; and several other shares were also burdened with liferents. George Bell died in July, 1830, and thereon his executors proved his will in the Guernsey court, and proceeded to uplift the funds of the deceased which were situated in Guernsey, France, England, and Scotland. The Scottish trustees, on the requisition of the executors, paid over to them the sum of £10,149, but there remained the sum of £4000 in their hands. This sum they uplifted from the heritable investment on which it stood, but they refused to transmit it to Guernsey, alleging that the family of Alexander Young of Harburn were residuary legatees, under the will, to the extent of one-third; that their interest was equal to the sum retained by them; that it was against the interest of the whole estate to subject it to the expense of having this fund transmitted to Guernsey, and retransmitted to the Scottish legatees; that the executors, who had found no caution in Guernsey, did not give a satisfactory account of their proceedings and intromissions hitherto; and that certain legal proceedings by creditors of William Anthony Bell, one of the residuary legatees, had been used, which interpelled them from paying. The executors, in November, 1831, raised an ordinary action against the Scottish trustees for payment of the whole trust-funds. Defences were lodged against this action; and, afterwards, in 1833, proceedings were instituted by Alexander Young and his family, in the Royal Court of Guernsey, against the executors, for the purpose of ascertaining and securing the share of the residue which was due to them as residuary legatees.

One of the creditors of William Anthony Bell, who adopted proceedings for creating a nexus over the fund in the hands of the Scottish trustees, was Alexander Craig, one of the trustees. He, in 1832, used arrestments to found a jurisdiction against William Anthony Bell, and then raised an action for payment of a debt of £2416, on the dependence of which he used arrestments in the hands of the Scottish trustees. In 1836 Craig obtained decree for the above sum, under certain deductions, against William Anthony Bell, and, having raised letters of horning on the decree, he used edictal arrestments in the hands of the Guernsey executors, and transmitted an intimation thereof to them, and also to Humphrey Graham, W.S., their agent in Scotland. Craig farther used arrestment to found a jurisdiction against the Guernsey executors, and raised a process of forthcoming against them, the conclusions of which, as restricted, were, for decree to pay to him such sums as should be declared by the executors, or found by the Court of Guernsey or other competent court to be the amount of the share to which William Anthony Bell was entitled under George Bell's settlement, the term of payment thereof being first come and bygone.

A summons of multiplepoinding was also raised in 1831, and a supplementary summons in 1836, in name of the Scottish trustees. In that process a claim was lodged by the Guernsey executors for the whole fund in medio. A claim was also lodged by Alexander Craig, claiming either to be ranked directly, or as a rider on the claim of the executors to the effect of realizing the fair amount of W. A. Bell's interest in the succession, or at least so much thereof as would satisfy his debt.

William Ramage, tenant in Boreland, another creditor of William Anthony Bell, adopted legal proceedings precisely similar to those of Alexander Craig, and, excepting that the debt due to him was of smaller amount, was in pari casu with Craig, and maintained the same pleas.

In support of their claim in the multiplepoinding, the executors, besides stating various objections to the regularity of the diligence which had been used by Craig, in order to attach the funds in the hands of the Scottish trustees, pleaded, that the deceased had died domiciled at Guernsey. He had executed his will there, and had selected executors who were domiciled there. The law of Guernsey, therefore, could alone determine their right and duties as executors, and it was only in the courts of Guernsey that they could be called to account ¹ by parties interested in the succession; and accordingly some of the legatees had taken steps for calling them to account there. But, by the law of Guernsey, they were entitled, ante omnia, to uplift the whole effects of the deceased, before proceeding to distribute any part of what was due to the residuary legatees; and in reference to the share due to William Anthony Bell, as it was liferented by his father, the executors were entitled and bound to retain it, in the mean-time, entirely under their own control, so as to secure the liferenter's interest, and pay it over to him as it fell due. If a residuary legatee, by attaching funds in Scotland, could force the Guernsey executors into an accounting in the Scottish courts, so might another residuary legatee, by attaching part of the funds in England, force them into an accounting in the English courts, while a third might, in like manner, compel an accounting in the French courts; and the executors were all along undoubtedly liable to account in the Royal Court of Guernsey. It was quite incompatible with the rights and duties of the executors, as well as of the residuary legatees, to sustain such a liability against executors. And if William Anthony Bell, the residuary legatee had no such right, the claimant, Alexander Craig, his creditor, could not by the use of arrestments plead a higher right than was competent to Bell himself.

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¹ Brown's trustees, Dec. 17, 1830 (ante, IV. 224); M'Master, June 7, 1838 (ante, XI 685).

Besides this, the terms on which the raisers held their trust-right to the fund in medio, expressly bound them to apply it in terms of the directions of the truster's will, which enjoined payment to his executors.

Craig, besides answering the objections made to the regularity of the diligence used by him for attaching the fund in medio, denied, that, by the law of Guernsey, the executors were, in the circumstances, entitled to remove this fund out of Scotland, without first satisfying his debt, or at least finding caution, that the share of the succession, effeiring to William Anthony Bell, should be forthcoming to him to the extent of his debt. The fund in medio was locally situated in Scotland, and the arresting creditors of a residuary legatee were entitled to retain it here to the effect of procuring payment of their debt, especially as the fund was the proper subject of confirmation in a Scottish court, so that the executors claiming it were, in so far, in the situation of Scottish executors, and liable to be so dealt with by the Scottish courts. And as a large sum had already been remitted from Scotland to the executors, without any interim distribution having been made in favour of the residuary legatees, there was the greater cause for the interference of the Court in protecting the interests of the claimant as to the last portion of the testator's funds now remaining in Scotland. In regard to the terms of the trust under which the Scottish trustees held the fund in medio, they did not affect the question, because they merely expressed the liability of the trustees to obey the directions of the truster, which was inherent in their trust-right, whether expressed or not.

The Lord Ordinary directed a case to be prepared, and laid before Daniel de Lisle Brock, Bailiff of Guernsey, for his Opinion as to the law of Guernsey. His Opinion bore, inter alia, that executors were “entitled to recover, without delay, the whole of the personal property that belonged to the testator, in whatever hands or country it may be situated, so as to make it perfectly available in the executors’ hands, to be distributed according to the tenor of the will;” that they could do so before distributing any thing to the residuary legatees, unless in special circumstances which did not occur in this case; that executors were not bound to find security, unless in peculiar circumstances, when the Royal Court of Guernsey, as a Court of Equity, might specially order them to do so; that the executors were “bound and entitled to recover from the trustees in Scotland, the funds in the hands of the said trustees, ‘in the same manner as the testator might have done during his natural life:'” that they were “entitled to insist that the funds shall be made over to them without finding security” to the legatees; that no reason existed in this case for a demand of security; and that the Scottish trustees were bound instantly to account to the executors for the trust-funds still in their hands.

After this opinion was returned, the Lord Ordinary, in the multiplepoinding, “having heard Messrs Ramage and Craig, separate claimants, on the one side, and the executors of the late George Bell, on the other,—these three parties being the only claimants in the multiplepoinding,—and considered the process, preferred the said executors in terms of their claims, and decerned; and found them entitled to expenses.” ^*

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* “ Note.—The late George Bell was a foreigner, and died domiciled in Guernsey. He settled his affairs by a will executed there. The preferred claimants are the sole executors under that will. They also are foreigners resident and domiciled in Guernsey, and it is there that the will must be administered. Accordingly, proceedings necessary for its administration have been adopted, and some of them are still in dependence in the Courts of that Island. There is no charge of delay, or of any improper management on the part of the executors, nor has it been said that the funds are in any danger from being under their charge.

“At the period of the deceased's death, part of his estate, amounting to about £4000, was in the hands of three Scotch trustees, who held it under a trust from him, which had empowered them to collect his debts here, and to bring the produce under the operation of any will he might have. Mr Alexander Craig, one of the postponed claimants, is one of these trustees. The executors demanded the money. On which the trustees first endeavoured to retain it in payment or security of legacies said to be due to some of themselves, or to relations in whom they were interested; and then raised this multiplepoinding, in which, on the averment of double distress, they call on all parties to dispute their preferences.

“The only parties who have claimed are the executors, who merely claim to have the whole fund brought under the operation of the will: and Messrs Craig and Ramage, who make separate claims, but whose cases are precisely the same. They are creditors of William Anthony Bell, who, as a residuary legatee, is entitled to a certain portion of the residue of the succession, but even this only after the death of his father, who has the liferent of it, and on the statement that they have validly attached the £4000, which is the sum in medio, their claim is, that each of them shall be ranked on the fund to the effect of realizing the fair amount of William Anthony Bell's interest in the succession, or so much thereof as will pay the sum due to him.’

“In this situation, the Lord Ordinary prefers the executors on two grounds.

“1st, He does not think that the diligences of Craig and Ramage have attached the fund.—Some of their proceedings are plainly inept; such as their arresting in the hands of the trustees, who were not debtors to William Anthony Bell, their debtor, and then attempting to arrest in the hands of the executors in Guernsey edictally. They further say, that they arrested to found jurisdiction; and having done this, they executed an action of furthcoming against the executors; and that on the dependence of this action, they also arrested; and it is on these steps that they chiefly rely. But independently of other objections, the whole of their proceedings are made inoperative by the single fact, that the executors are not, and never were, the debtors of William Anthony Bell, and that there is nothing in the conduct of the executors, or in the condition of the fund, which requires the claimants to have their ultimate claim secured so far as appears in this action.

“2d, Even though the fund had been effectually attached, the claim of Messrs Ramage and Craig in this multiplepoinding could not be sustained, without compelling the executors, who are foreign administrators, not said to be managing improperly, and subject to a foreign court, to enter into a general accounting here; and without adopting the principle that such administrators can be compelled to account in any country where any creditor of any legatee may attach part of the estate.

“William Anthony Bell's right is to a prospective share of the residue; and the residue can never be ascertained till the whole property is collected and the trust ready to be closed; and this involves the consideration of all the claims, and all the debts, and all the duties of the executors; under a foreign law interpreting and controling the management of a foreign trustee. And even if the amount of his share were fixed, it is not yet due; and the executors are bound to lay it out in the best way for the liferenter, which certainly is not by having it locked up in a Scotch bank. These two claimants say that they are entitled to have the preference they have obtained secured, and that it will be lost if the money be allowed to go out of the country; but they are not entitled to have it secured in the way they claim. What if William Anthony Bell had made the same claim directly in his own person? Could he, a postponed claimant on the residue, and only entitled to claim under the will,—that is, through the executors,—have compelled them to account to him in Scotland, and at present? The law of Guernsey has said the reverse, and authoritatively in this very case.

“The Lord Ordinary would have taken this view in principle, even though the two precedents of Brown, 17th December, 1830, and of M'Master, 7th June, 1833, had not been before him.”

In each of the relative processes of forthcoming brought by Craig and Ramage, respectively, against the Guernsey executors (which were conjoined), the executors, besides objecting to the validity of the diligence used by Craig and Ramage in founding their action, pleaded, on the grounds already stated, that they were amenable solely to the Royal Court of Guernsey, and were ineptly and incompetently convened in the courts of Scotland.

In each of these processes the Lord Ordinary “sustained the defence of incompetency, dismissed the action, and decerned, and found the pursuers liable in expenses.”

Craig and Ramage reclaimed against these several judgments.