Scottish Court of Session Decisions

Macfarlan & Co. raised an action in the Sheriff-court of Argyllshire “against Duncan Graham, residing at Daltot, in the parish of North Knapdale, and county of Argyll, as executor-dative, qua next of kin of the late Mrs Janet Graham or M'Arthur, innkeeper, Tayvallich, in the said parish of North Knapdale, for having vitiously intromitted with the goods, gear, and effects of the said deceased Mrs Janet Graham or M'Arthur, or at least as representing her on one or other of the passive titles known in law,” concluding for £100, 9s. 3d., for goods supplied to the deceased Mrs M'Arthur.

The defender put in the following minute of defence:—“(1) The defender is executor-dative of the late Mrs Janet Graham or M'Arthur, conform to testament-dative in his favour by the commissary of the county of Argyll, of date 5th August 1868, and is liable only for payment of the deceased's debts, secundum vires inventarii. He is not liable for her debts as a vitious intromitter, nor as representing her on a passive title. (2) The defender does not know what sum is due to the pursuers, but he does not dispute the amount of the account pursued for. The defender is willing to rank and pay the pursuers' claim rateably with those of the other creditors of the deceased, and the pursuers having adopted proceedings needlessly, are bound to constitute their claim at their own expense. (3) The defender is not liable for expenses. (4) The present summons being defective, the defender is entitled to the expense of this defence and subsequent procedure, if any.”

A debate having taken place on the closed record, the Sheriff-substitute ( Home) pronounced the following interlocutor;—

Inverary, 30 th January 1869.— The Sheriff-substitute having heard parties' procurators, and made avizandum, in respect that it was not disputed that the late Mrs Janet Graham or M'Arthur was indebted to the pursuers in the sum of £100, 9s. 3d. sued for, and that the defender is her executor; assoilzies the said defender from the passive title or titles libelled on, but grants decree against him as executor, for the said sum of £100, 9s. 3d.; but, in respect this action was not raised against the defender only in his character of executor, but also as a vitious intromitter, although he had obtained confirmation as executor before this action was raised, and also in respect that the pursuer was bound to constitute his claim at his own expense, finds the defender entitled to his expenses; appoints an account thereof to be given in, and remits to the auditor to tax and report, and decerns.

“ Note.—This case was argued before the Sheriff-substitute, not on the merits, but on the question of expenses. After the defender had been confirmed executor, this action was raised against him, alternatively as executor, or vitious intromitter. It seems to the Sheriff-substitute that the defender was entitled to object to decree going out against him as a vitious intromitter, and that therefore, on this ground, he would be entitled to his expenses. But besides this, it seems to the Sheriff-substitute that the pursuer was hound to constitute his debt at his own expense. In the case of Smith v. Kippen, 19th July 1860, 22 D. 1497, this was stated to be the law in unopposed cases. And if it is so in these cases, the Sheriff-substitute considers that the same rule should a fortiori hold where the defender has successfully stated a defence on other points.”

The defender appealed to the Court of Session.

Watson and Keir for him.

Millar, Q.C., and W. A. Brown in answer.

In the course of the discussion a letter was produced and founded on by the appellant, from which it appeared that the confirmation of Graham as executor had been within the knowledge of the pursuers' agent prior to his preparing the summons. On the other hand, it appeared from a correspondence produced by Macfarlan & Co. that, before the action was raised, they had repeatedly, but in vain, appealed to Graham for information as to the executry funds. The Court held that both parties were in the wrong. After knowledge of the confirmation, which must be taken to have been possessed by the pursuers' agent, he was entirely wrong in so drawing the summons as to infer personal liability for vitious intromission on the part of the executor who had been confirmed. The conclusion should have been merely against the executor confirmed. It was said by the respondents that such a style of summons was in use in practice in cases of this sort. If that was so, the sooner it was departed from the better, for the Court held it to be a bad practice. On the other hand, the fault of the respondent's agent did not justify the executor in entering upon litigation. A letter or an interview between the parties should have put matters right; and, besides, the executor was in fault in not communicating information to the respondents as to the executry funds. In these circumstances, neither party should be found entitled to expenses, either in the Sheriff or in the Supreme Court.