Scottish Court of Session Decisions

This was a petition for the appointment of a judicial factor on the estate of the late William Russell, C.A., by Eliza Russell and Isabella Russell or Miller, two of the next of kin of the deceased.

The petition was opposed by James Alexander Molleson, C.A., who claimed to be executor-nominate under Mr Russell's last will and testament.

Mr Russell died at Edinburgh on 13th November 1871. On his repositories being opened after his funeral there was found a document purporting to be a holograph testament of the deceased. It contained numerous deletions, and, in particular, the deletion of the names of the two persons who were originally nominated in succession as sole executors, and the insertion by interlineation of the name of Mr Molleson, whom failing, of Mr Steel, Register House, Edinburgh. These deletions and interlineations are not noticed in the testing clause. The executor was also appointed universal legator (sic) under burden of the testator's debts and legacies.

Competing petitions for the office of executor were lodged in the Commissary Court of Edinburgh by Mr Molleson and the present petitioners. The latter denied that the interlineation of Mr Molleson's name was holograph of the deceased, and they also averred that the deletions and interlineations affecting the office of executor were made after 10th August 1871, from which date down to his death they averred Mr Russell was not of a sound disposing mind. The Commissary on 11th January 1872, without allowing proof, but after an inspection of the document, granted warrant to issue confirmation in favour of Mr Molleson. An appeal to the Court of Session was taken, which is still depending.

The Lord Ordinary ( Mackenzie), on 16th January 1872, appointed Mr G. A. Jamieson, C.A., to be judicial factor on Mr Russell's estates. His Lordship added the following note:—“The writs founded on by the respondent as constituting and appointing him to be the sole executor of the deceased Mr Russell contain numerous deletions, and, among others, the deletion of the names of the two persons who were originally nominated in succession as sole executor, and the insertion, by interlineation, of the name of the respondent, whom failing, of Mr Steele. These deletions and interlineations are not noticed in either of the testing-clauses, bearing to be dated 10th January 1865 and 6th February 1867. These testing-clauses afford, therefore, in the opinion of the Lord Ordinary, no presumption that the deletion of the names of the persons originally appointed as executors, and the insertion or interlineation of the names of the respondent and of Mr Steele, are holograph of Mr Russell.— Robertson v. Ogilvie's Trs., Dec. 20, 1844, 7 D. 236.

When the respondent applied to the Commissary of Edinburgh for confirmation, the commissary-clerk, very properly, in respect of the deletions and interlineations in the nomination of executors, refused to issue confirmation without the special authority of the Commissary. The respondent accordingly presented a petition for such authority, in which he averred that these deletions were made by Mr Russell; and that his nomination as executor was, as well as the remainder of the writ, holograph of Mr Russell. The present petitioners, who claim to be two of Mr Russell's next of kin, lodged answers to the respondent's petition, in which they denied that the interlineation containing the petitioner's name is holograph of Mr Russell, and averred that the deletions and interlineations affecting the nomination of an executor were not made before 10th August 1871, at which date, and from which date down to 13th November 1871, when he died, Mr Russell was not of sound disposing mind, so that the writ founded on by the respondent, as altered by deletions and interlineations, was not the last will of a free and capable testator. The petitioners also presented an application to the Commissary of Edinburgh to be decerned executors qua next of kin to Mr Russell. Without allowing any proof, the Commissary-Depute, on 11th January 1872, pronounced an interlocutor granting warrant to the commissary-clerk to issue confirmation in favour of the respondent; against

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which interlocutor the petitioners, on the same day, lodged an appeal, which has not yet been disposed of.

There is thus no one, and until confirmation is expede there can be no one, in a position to take charge of, recover, and administer the moveable estate left by Mr Russell, which amounts, including the value of his household furniture and the debts due to him, to about £4000. According to the view which the Lord Ordinary takes of the writs founded on by the respondent, the respondent must prove, before he can obtain confirmation, that his substitution as executor in room of the party originally nominated is holograph of Mr Russell, and that the writs as altered are the last will of a free and capable testator.— Anderson v. Gill, H. L., 3 Macq. 180. See also appeal case for opinions of Judges in Court of Session. If this view be correct, some time may elapse before a final decision is pronounced on the petitions now depending in the Commissary Court, as was the case in Anderson v. Gill, which originated in somewhat similar circumstances. The appointment, therefore, of a judicial factor to take charge of the moveable estate until confirmation is obtained appears to the Lord Ordinary to be right and proper.”

Mr Molleson reclaimed.

M'Laren, for him, maintained that there was no room for the appointment of a judicial factor, Mr Molleson being executor-nominate under the will of the deceased.

Campbell Smith for the petitioners.

At advising—