Scottish Court of Session Decisions

Robert Smith, baker in Edinburgh, died intestate in June 1879, and his youngest son Robert Smith was decerned executor-dative to him. The inventory given up by him specified estate to the value of £6. For some years previous to his death the deceased was blind, and resided with his son Robert. In December 1879 an elder son Richard Smith, for himself, and as factor and attorney for his brother Peter Smith, miner in Pennsylvania, and a daughter Mrs Ann Smith or Anderson, with consent of her husband Thomas Anderson, raised this action against their brother Robert, as executor of their father, in the Sheriff Court of Midlothian, for production of his executry accounts, and for payment of the sum of £40 to each of the three pursuers, which they alleged was due to them as next-of-kin of their father on a true accounting of his estate. Alternatively they concluded for payment of a sum of £50 each in the event of failure to account. They alleged that Mrs Catherine Smith or Anderson, a widow, their sister, who had died on 8th January 1879, had left a will under which the defender was appointed executor, whereby she bequeathed her whole estate, excepting a certain legacy to her father, to her brothers and sister in equal shares; and that the defender had obtained not only his own share of one-fifth of this estate, but had also appropriated that of his father, who had, as above mentioned, lived in the same house with the defender. This share of Mrs Anderson's estate, as well as a quantity of household furniture, belonged, the pursuers alleged, to their father at his death, and ought to have been accounted for by the defender. The defender stated in defence that the burden of his father's maintenance for several years before his death had fallen upon him and that his father had handed to him on its receipt his share of the deceased Mrs Anderson's estate in part payment of the cost of his maintenance. The defender produced an account of his intromissions, and also an account between himself and the deceased, bringing out a balance due to him of nearly £300.

The Sheriff-Substitute ( Hallard) on 4th February 1880 dismissed the action, adding this note—

“ Note.—This is an action at the instance of two brothers and a sister against their brother, the defender, as executor-dative of their father the late Robert Smith, who died intestate on 27th June last. The inventory discloses an estate amounting to £6.

The pursuers' complaint is that this sum by no means truly represents the estate which the deceased died possessed of, and which truly fell into the hands of the defender as his executor. Except on one point their averments are very vague. The one point on which a definite issue is joined between the parties is as to a certain share which fell to the deceased from the inheritance of a daughter who predeceased him, a Mrs Catherine Smith or Anderson, whose settlement is in process. The defender was executor-nominate under that settlement, and had also produced his confirmation and relative inventory in that capacity. He distributed that estate in terms of that settlement, and there is no dispute on that point, the pursuers' discharges as parties interested therein being also produced in process. A part of that estate fell to the father of the parties. The defender says it was more than absorbed

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by his maintenance, the old man having lived and died in the defender's house. The pursuers dispute that statement, and this is the substantial issue between them.

That is an issue which is not decided by the foregoing interlocutor. It is thought that the pursuers have mistaken their remedy. In substance, their contention is that the old man's share of his deceased daughter's executry should have been set forth in the inventory upon which the defender has obtained confirmation as executor dative. That may be so. But if it is, the proper course, and the only competent course, is to get themselves, as next-of-kin, decerned and confirmed executors ad omissa. A creditor has his choice of remedies (Bell's Com. ii. p. 81, M'Laren's ed.). But these pursuers are not in the position of creditors. There was no proposal to set the defender's confirmation aside by way of reduction. Standing the confirmation, it is the only measure of responsibility between the executor and the next-of-kin.”

The pursuers appealed to the Sheriff ( Davidson), who adhered.

The pursuers appealed, and argued—It is competent for next-of-kin, as it is for creditors, in cases where the executor has omitted or undervalued part of the estate in his inventory, to bring an action against the executor for the estate omitted if intromissions with it could be proved. The Sheriff was in error in holding that a choice between that course and confirmation ad omissa was only available to creditors. In such a question next-of-kin are in the same position as creditors.

Authority— Inglis v. Bell, Jan. 24, 1639, M. 2737, 2 Bell's Com. (7th ed.), p. 81.

At advising—