Scottish Court of Session Decisions

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Cite as: [1871] SLR 8_623, [1871] ScotLR 8_623

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SCOTTISH_SLR_Court_of_Session

Page: 623↓

Court of Session Inner House First Division.

Saturday, July 1. 1871.

8 SLR 623

Ann Thomson and Others.

Subject_1Judicial Factor
Subject_2Executor.

Facts:

Circumstances in which the Court appointed a judicial factor on the estate of a deceased, one of two executors-nominate being absent from the country, and the other having a large claim as a creditor on the estate.

Headnote:

This was a petition for the appointment of a judicial factor on the estate of the deceased John Thomson, farmer at Finlaggan, Islay. Mr Thomson died on the 21st February 1869, leaving a holograph testament, by which he appointed his sister, Ann Thomson, and his cousin, Dr M'Nicol, his joint executors, along with a natural son (then fourteen years of age), when he should attain majority. The value of the estate was said to be about £1900, of which the greater part was to be liferented by the testator's mother, and at her death to be paid to the said son. Miss Thomson, and her sister Mrs Pragnell, had large claims on the estate as creditors. Dr M'Nicol was acting as a ship surgeon. He was home for a short time in March 1871, and then sailed for South America.

Miss Thomson and Mrs Pragnell accordingly presented the present petition. There were no allegations of mismanagement against Dr M'Nicol. On the contrary, it was admitted that the estate was being wound up by a local agent in a satisfactory manner. But from the absence of Dr M'Nicol, Miss Thomson was practically the sole executor on an estate against which she had a large if not exhaustive claim. In these circumstances, the petitioners submitted that it would be for the advantage of all parties if the estate were placed in neutral management.

Answers were lodged for Dr M'Nicol in his absence. It was stated that Dr M'Nicol was only taking a few voyages for the sake of professional experience, and that he intended to settle permanently at Dunoon, where he was expected about Whitsunday of the present year. It was further stated that, although the petitioners had alleged in vague terms that they had claims against the estate, they had failed to lodge any specific claims,
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or supply Dr M'Nicol with any information as to their grounds; that he was perfectly ready carefully to consider any such claims, and to deal with them according to their merits; that he considered it his duty to Mr Thomson and his son to remain in office, and resist the present application.

The Lord Ordinary on the Bills, on the 20th April 1871, nominated a judicial factor.

Dr M'Nicol reclaimed; and the case was debated on the 18th May.

Balfour for him.

M'Laren for the petitioners.

The Court were of opinion that it would be a strong step to supersede an executor-nominate, with no allegations of mismanagement against him. They were not in as favourable position to decide this application as they should be. Dr M'Nicol should be in this country, and the claims of the petitioners should be put in some tangible shape.

Their Lordships, with this view, superseded the application for one month, and the case came up on the roll on 1st July.

A statement of the claims of the petitioners in the executry was put in, in regard to which it is sufficient to say that they were claims in respect of various funds alleged to have fallen to the petitioners by succession, and to have been uplifted by the deceased. The total amount exceeded the value of the executry.

Dr M'Nicol had not returned to this country; and although parties were not agreed as to his intentions, it was evident that they were of a somewhat uncertain character.

At advising—

Judgment:

Lord President—This is one of those cases where it is difficult to exercise our discretion to the satisfaction of one's own mind. There are weighty considerations on both sides. The expense of a judicial factory in so small an estate is large. If there was any fair prospect of such an application being avoided in the end, I should not be disposed to appoint a judicial factor. But even if Dr M'Nicol returned, I do not see how the two joint executors could well dispose of Miss Thomson's claims. If we wait till he comes home, the strong probability is that we shall be obliged in the end to resort to a judicial factory. On a balance of considerations, I think the best course is to appoint a factor now.

Lord Deas—I concur with some hesitation. If the executors could have assumed a third party, a judicial factory might have been avoided. But the testator has given no power of assumption. And if we refused the present application we should only be bringing back the parties before us at some future time.

Lords Ardmillan and Kinloch concurred.

On the question of expenses, the Lord President observed—I am not generally disposed to saddle the estate with the expenses of a dispute of this kind. But here the conflict between the petitioners and the absent Dr M'Nicol was inevitable. There has been a failure of administration, which has landed the estate in difficulties. The petitioners were justified in making the application. In his absence, the representatives of Dr M'Nicol were justified in lodging answers. I am inclined to say, not only that the petitioners' expenses should come out of the estate, but Dr M'Nicol's also. There would be no justice in Dr M'Nicol having to pay his expenses when he came home.

The other Judges concurred.

The Court named a judicial factor, and appointed the expenses of both parties to be paid out of the estate.

Solicitors: Agents for Petitioners— J. & R. Macandrew, W.S.

Agents for Dr M'Nicol— Murray, Beith & Murray, W.S.

1871