Scottish Court of Session Decisions

The summons in this suit—at the instance of Hannah More Macadam, Thomas Patrick Macadam, and Mary Eliza Macadam, residing at Falmouth, in the Island of Jamaica, and all children of the deceased Thomas Macadam, sometime of Jamaica aforesaid, with the special consent and concurrence of Mary Ann Macadam their mother, widow of the said deceased Thomas Macadam, and Andrew Baird Matthews, solicitor in Newton-Stewart, Wigtonshire, their mandatory; against Margaret Macadam, sometime residing at No. 151 Upper Brook Street, Manchester, now or lately at

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No. 63 Tufnel Park Road, Holloway, London, or elsewhere furth of Scotland, administratrix of the late Hannah Breeze or Macadam, sometime of 86 Dorset Street, Hulme, Manchester, who died at 86 Dorset Street aforesaid on 31st July 1864, conform to letters of administration of Her Majesty's Court of Probate at Manchester in favour of the said Margaret Macadam, dated 14th September 1865, concluded for payment of the sum of £789, 6s. sterling, being balance unpaid of legacy falling to the said children of the said deceased Thomas Macadam from the estate of the said deceased Hannah Breeze or Macadam and her husband Thomas Macadam senior, sometime grocer at Newton-Stewart, and balance of residue, division of return of probate duty and interest, all due to the pursuers from said estate, with interest of said sum of £789, 6s. at the rate of five pounds per centum per annum, from the 21st of May 1872 until payment. As the defender was resident in England, arrestments to found jurisdiction were used in Scotland of certain funds admittedly belonging or due to the defender, but whether in her own right, or as part of the executry estate from which the legacy was claimed, did not distinctly appear. It appeared that probate of the will of Mr Macadam, and of defender's mother, had been taken out in England, but that the inventory of Mr Macadam's estate was given up and recorded in Scotland, where the will had been made, and where the greater part of the property was situated. The defender stated that she never intromitted with any portion of her father's succession, nor paid any legacies in connection with that estate, but all that was done by an agent of the name of Martin, who managed the affairs, and in whose hands everything was left by all the parties interested, and that she never employed him to act as agent in the succession of her father.

The pleas in law for the pursuers were—“(1) The defender is amenable to the jurisdiction of the Supreme Courts of Scotland in respect of said arrestments and the funds thereby attached. (2) The defender having, as executrix foresaid, realized and intromitted with the estates of the said Thomas Macadam senior, is liable in the sum sued for, as the proportion of the said estates falling to the said Thomas Macadam junior, and now resting-owing and due to the pursuers. (3) The defender being justly due and indebted to the pursuers the sum sued for, the pursuers are entitled to decree as libelled.”

The pleas in law for the defender were—“(1) No jurisdiction, in respect that the defender is not resident in this country, and no funds belonging to the executry estate of the mother have been attached by the arrestments ad fundandum jurisdictionem used by the pursuers. (2) The pursuers have no title to sue in their present character, in respect the said Thomas Macadam having survived the period of the division of the estate of his father, his share thereof vested in him, and now belongs to the pursuers as his widow and next of kin respectively. (3) The defender not having intromitted with the estate of the said Thomas Macadam senior, she is not liable for the sums sued for in the present action. (4) The defender is entitled to absolvitor, in respect that, as administratrix of her mother, she paid the debt due from her mother's executry to the representatives of the late Thomas Macadam senior. (5) The pursuer, Mrs Mary Ann Macadam, having on her own behalf, and as the guardian of her children, intrusted the share of the said estate belonging to them to the said David Martin, and he having, after the division of the said estate, held the same on their behalf, with the sanction and under the instructions of the said pursuers, no claim against the defender in respect of the said share can be maintained by the pursuers. (6) The said pursuers having made no claim or demand against the defender for payment of the said share during the lifetime of Martin, but dealt with and recognised him as the only party responsible therefor, the pursuers are barred from making the present claim against the defender. (7) In any event, the defender is not liable to the said pursuer, Mrs Mary Ann Macadam, for the proportion of the said share belonging to her as relict of her husband, nor to any of the pursuers for the foresaid sum of £250 invested by Martin under the instructions, or with the sanction and authority of the said pursuers. (8) The defender not being due the pursuers in the amount libelled, or any part thereof, she is entitled to absolvitor, with expenses.”

The Lord Ordinary pronounced the following interlocutor:—

“25 th March 1873.—The Lord Ordinary having heard parties’ procurators, and considered the closed record and productions, repels the first plea in law for the defender, in so far as it is pleaded as preliminary and excluding the jurisdiction of this Court; and appoints the case to be put to the roll for further procedure: Reserving in the meantime all questions of expenses.

Note.—This case is in some respects not free from difficulty, but in the view the Lord Ordinary takes of it, the question raised is not so much one of jurisdiction as of forum competens or conveniens, which is not made the matter of a separate plea in defence, and which the case of Brown's Trustees, 17th December 1830, mainly relied on by the defender, truly was.

The circumstances of the case, however, are in some respects different from those of Brown's Trustees. For the present is not strictly speaking an action in which an executor is called to account for the execution of his office, or to enter into a general accounting relative to the affairs of the deceased party dying abroad; but one in which the defender is sued for payment of a legacy bequeathed to the father of the pursuers by the late Mr Macadam senior, and for which the defender is alleged to be liable as an intromitter with Mr Macadam's estate; and as she is resident in England, arrestments to found jurisdiction have been used in this country of certain funds admittedly belonging or due to the defender, but whether in her own right, or as part of the late Mr MacadaM's estate, does not distinctly appear. The case therefore is one in which the jurisdiction of this Court to entertain the action has, it is thought, been established by the arrestments used against the defender, and falls to be dealt with, in this respect, according to the rules applied in the cases of Campbell, March 2, 1809, Hume, p. 258, and Innerarity, March 7, 1840, 2 D. p. 816, rather than that of Brown's Trustees, which, as explained in the opinions of the Judges in the case of Macmornie, Jan. 16, 1845, was not a question of jurisdiction, but of forum conveniens, and the present case is distinguishable from that of Brown's Trustees in this respect also, that although probate of the will of the late Mr Macadam and of the defender's mother appeared

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to have been taken out in England, the inventory of Mr Macadam's estate was actually given up and recorded in Scotland, where the will had been made, and the greater part of the testator's property was situated. This is shown by the residue account, No. 22 of process, signed by the defender, and which appears from the statements in the record to have been prepared and given up by an agent employed on her behalf, and in this respect the case is not dissimilar in one of its features to that of Macmornie already referred to, in which the plea to jurisdiction was repelled, leaving it open to the Court to deal with the question of forum conveniens on the case being proceeded with.”

The defender reclaimed.