Scottish Court of Session Decisions

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Cite as: [1866] SLR 1_226_1, [1866] ScotLR 1_226_1

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SCOTTISH_SLR_Court_of_Session

Page: 226↓

Court of Session Inner House First Division.

1 SLR 226_1

Murray

v.

Merry and Others.

Subject_Judicial Factor — Powers.
Facts:

Circumstances in which held (aff. Lord Jerviswoode) that a judicial factor who had made necessary payments to a truster's widow and daughter, in excess of the
Page: 227↓
provisions in their favour, was entitled in a question with the beneficiaries to take credit therefor.

Subject_1Judicial Factot
Subject_2Duties
Subject_3A.S. 1730.
Facts:

A factor having failed to lodge his accounts annually, in terms of the Act of Sederunt of 1730, held (per Lord Jerviswoode, and acquiesced in) that his salary should be restricted to one-half.

Headnote:

This action is raised by Mr John Murray, S.S.C., judicial factor on the trust-estate of the late Alexander Thomson, for the purpose of distributing the deceased's estate.

Some claimants objected to the condescendence of the fund in medio, lodged by the factor, on various grounds. Inter alia, they objected—1st, that the factor had failed to fulfil the duty of lodging accounts annually, as required by the Act of Sederunt of 1730, whereby he had rendered himself liable “to such a mulct as the Lords of Session shall modify, not being under a half-year's salary; “2d, that the factor had improperly debited the estate with certain outlays. Lord Jerviswoode sustained the first of these objections, and restricted the factor's salary to one-half. He also sustained the second objection to the extent of £13, 13s. The factor reclaimed, but abandoned his reclaiming note at the bar.

The claimants further objected that the factor had made payments for behoof of the widow and daughter of the truster in excess or violation of his duty. The Lord Ordinary found that the claimants had failed to establish this objection; and they reclaimed.

It appeared that by the truster's settlement the residue and remainder of his estate, or the prices and produce thereof, after payment of his debts, &c., and an annuity of £30 to his widow, was to be held for the use and behoof of Martha Thomson, his only child, while she remained unmarried. Betwixt 1846 and 1859 the clear revenue received by the factor was £435. 13s 9 1 2d., while the payments made by him during the same period on account of the widow and daughter amounted to £673, 9s. 7 1 2d., being in excess of the provisions made in their favour, £237, 15s. 10d. The factor justified this overpayment by saying that the daughter was blind and unable to earn anything for herself, and that he was entitled to make the overpayments, because the truster's estate, notwithstanding the settlement, was liable for the maintenance of his child. It appeared also that the daughter had right to the rents of other property beyond what fell under the factory, and that Mr Murray was her agent, and collected the rents for her. These rents amounted to at least £20 a year; while the claimants averred that they amounted to £30, and that the fee of the property was vested in the daughter. Both widow and daughter are now dead.

The Court to-day adhered to the Lord Ordinary's interlocutor. The judgment of the Court was delivered by

Judgment:

Lord Deas, who said—The question depends upon whether the factor before making the overpayments was bound to realise the heritable property belonging to the truster's daughter. It was not disputed that if this property had not existed the factor would have been in the circumstances entitled to make the overpayments. Neither was it disputed that Miss Thomson's property was liable for any necessary supplement of the allowance to her and her mother. It is putting it very high to say that the factor was first bound to exhaust Miss Thomson's property. That might have required considerable time, and the overpayments which he made could not be delayed. Another way of putting the objection is that the factor having made the overpayments, is bound himself to make good his recourse against the property. This is more plausible; but I am rather disposed to think that all that the reclaimers are entitled to is reimbursement out of the property; and this involves no hardship, because Mr Christopher Scott, who has succeeded to Miss Thomson's property as her heir-at-law, is a claimant in this multiplepoinding, and the claim may be made good against him and the property in this process.

The other Judges concurred, and the Court adhered, reserving to the reclaimers to make good their claim either in this process or otherwise.

Counsel:

Counsel for Factor— Mr Fraser and Mr Trayner. Agent— Mr Thomas Wallace, S.S.C.

Counsel for Objectors— Mr Millar. Agents— Messrs Tait & Crichton, W.S.
1866