Scottish Court of Session Decisions

This is an action of count, reckoning, and payment at the instance of Mrs Anderson, sole surviving executrix-dative qua nearest in kin decerned and confirmed to the deceased Andrew Dalgairns, Esq., against Christopher Kerr, conjunct town clerk of Dundee, factor and commissioner for the executry estate of the said deceased Andrew Dalgairns. Mr Dalgairns died in 1840, and on 22d April 1841, the pursuer and her brother were confirmed executors of the deceased. The pursuer and her co-executor, with consent of the other next of kin, executed a deed of factory in 1841, in favour of the defender, who, in consequence, intromitted with the estate. The present action is brought by the pursuer to call the defender to account. The other executor is now dead. Several points of a special nature are raised in the record, but the only point on which the judgment of the Court turned is raised by the fifth plea in law for the defender, which is to the following effect:—“The survivor of two executors-dative is not entitled to sue actions against parties who acted for or transacted with both.” The Lord Ordinary (Jerviswoode) repelled this plea, and remitted the defender's accounts for examination and inquiry by an accountant. His Lordship added the following note to his interlocutor:—

….“The fifth plea is, however, in the opinion of the Lord Ordinary, of a more formidable character; and although he has repelled it, he is sensible of the importance and difficulty of the question it raises.

The argument in support of it is, as he understands, rested mainly on an analogy between the office of executors-dative and tutors-dative.

As respects the latter class, it has been finally determined by the judgment of the House of Lords in the case of Scott v. Stewart, 7th November 1834 (7 Wilson, S. and Maclean, p. 211) that the office of tutors-dative, constituted by gift in favour of three persons, terminates by the death of one of them.

If, then, the principle thus established has application to the case of executors-dative, it would follow that the death of one of the executors, and in this case that of the late Peter Dalgairns, had operated so as to cut down the title to sue, which is here alleged on the part of the pursuer. But the Lord Ordinary is not satisfied as to the precise correspondence between the two offices, as respects the characteristics which can alone have a relevant bearing on the point now raised.

Tutors have charge of the person of the pupil, and consequently the direction of his or her education and upbringing. But, as respects the office of executor, the characteristics now adverted to, which appear to have weighed so much in the estimation of the Lord Chancellor in disposing of the case of Scott, are altogether awanting.

Accordingly, it is laid down by Lord Stair (3, 8, 59), ‘Amongst co-executors the office accresceth to the survivors, who are in the same case as if the defunct executor had not been named, only in so far as the testament was executed before that executor's death his share is transmitted to his executors, and accresceth not, but is transmitted cum onere debitorum defuncti pro rata.’ And, again (3, 8, 9), that ‘if any of the executors be dead, the office accresceth to the survivors, and they are liable and convenable alone,’ and so forth.

The statement of the late Professor Menzies, in his lectures (page 488), is on this point to the effect that, ‘when several executors die, the entire office accrues to the survivors,’ and it may therefore be assumed, as the Lord Ordinary has seen no adverse judgment in the reported cases, that the doctrine of Lord Stair is that which, as respects this matter, has been acted on in practice during a period long subsequent to the judgment of the House of Lords relative to the office of tutor-dative, to which the Lord Ordinary has adverted, and on which the defender so strongly founds.” …

The defender reclaimed.

Webster, for him, was heard in support of the reclaiming note.

Millar, for the pursuer, was not called upon.

At advising,