Scottish Court of Session Decisions

The circumstances of this case are set forth in the following note of the Lord Ordinary:—

“ Note.—The petitioners are beneficiaries materially interested in the executry estate of the deceased John Rhind, who died on 28th August 1873, in his eighty-ninth year, leaving a last will and testament, dated 20th February 1862, by which he nominated certain persons to be his executors, of whom David Shiach, one of the respondents, is now the sole acceptor. The prayer of the petition is ‘to sequestrate the estate of the said deceased John Rhind, if necessary, and to appoint a judicial factor thereon with the usual powers.’ In support of the prayer of the petition it is alleged, inter alia, (1) that the said David Shiach fraudulently procured the execution by the deceased of three codicils to his said testament, discharging him (the said David Shiach) of all debts due by him to the deceased, and conferring upon him and certain of the other respondents benefits over and above the legacies left to them by the original testament; and (2) that the debts really due by the said David Shiach to the deceased, and now owing by him to the executry estate, amount to about two hundred and fifty pound—nearly half the value of the whole executry estate—and that as he disputes the existence of any debts except to the extent of about £8, his personal interests are opposed to those of the beneficiaries. The allegations regarding the said codicils are, shortly, to the effect that at the time of the alleged execution thereof the deceased could neither read nor write through blindness and bodily infirmity; that his memory was quite gone; that the codicils were not read over to him; that the said David Shiach led the deceased's hand at the subscription; that the deceased never knew the contents of the said codicils, and did not understand what was their effect; that the deceased was not at the date of said codicils of a sound disposing mind, and from mental weakness and blindness, caused by physical weakness and old age, was incapacitated from giving directions in regard to his affairs or the disposal of his property after his death, or of executing any deeds with that view; and that the said pretended deeds were not the deeds of the deceased. There are alternative statements of facility on the part of the decased, and of fraud and circumvention and undue influence on the part of the said David Shiach, as having led to the execution of the said codicils; and there are other similar allegations, for which reference is made to the petition.

The petitioners raised in the Court of Session a summons of reduction of said codicils, in which all the foregoing allegations were set forth as the reasons of reduction, and in which they called as defenders the said David Shiach, and the parties who would have taken benefit by these codicils, viz.—the respondents Jane Shiach and Helen Jane Shiach or M'Cann. Appearance was duly entered in that summons for all the defenders, but they failed to satisfy the production, and decree of certification, contra non producta was pronounced on 14th November 1874, with expenses against the said David Shiach, which expenses were afterwards taxed and duly paid by him.

In these circumstances, the petitioners maintain that the administration of the executry estate is not safe in the hands of David Shiach, and that the estate should be placed under judicial management, in order that the state of accounts between David Shiach and the deceased may be investigated and ascertained, and that the estate may be properly invested. The petition, however, does not pray for the removal of the said David Shiach from the office of executor.

Answers have been lodged for David Shiach and certain of the other beneficiaries, who are also materially interested in the executry estate, in which it is pleaded that the petition is incompetent, on the ground, as explained by the respondents' counsel at the debate, that such a petition is competent only in the Inner House, and cannot competently be presented to, or entertained by, the Junior Lord Ordinary—(1) Because it is virtually an application for the removal of David Shiach from his office of executor; and (2) because it prays for sequestration of the executry estate.

If the petition had expressly prayed for the removal of the executor, it seems to be settled by the case of Mitchell, 20 July 1874, 2 Macph. 1378, that it ought to have been presented directly to the Inner House, and not to the Junior Lord Ordinary. But it does not pray for the removal of the executor, but merely for the sequestration of the executry estate and the appointment of a judicial factor, which would not necessarily involve the removal of the executor, though it would cause a temporary suspension of his functions pending the sequestration. It becomes necessary to inquire whether and how far such a petition is, according to the sound construction of the Act 20 and 21 Vict. cap. 96, regulating the distribution of business in the Court of Session, one of those petitions which must be brought, in the first instance, before the Junior Lord Ordinary, and disposed of by him in the Outer House.”