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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mrs Wyndham Rachael Tregonwell or Inglis, Petitioner [1882] ScotLR 19_546 (17 March 1882)
URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0546.html
Cite as: [1882] ScotLR 19_546, [1882] SLR 19_546
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SCOTTISH_SLR_Court_of_Session
Page: 546↓
Court of Session Inner House First Division.
Facts:
The executrix under a deed recorded in the Books of Council and Session presented a petition for a warrant on the keeper of the register to deliver the deed to her for production in an English Court in a suit brought by her to obtain probate in her favour of the disposition, settlement, and codicil, the English Judge having declined to decree probate unless the original disposition, settlement, and codicil were produced in Court. The Court granted the prayer of the petition on the petitioner's granting a bond of caution with sufficient security to return the deed within one month, an extract of the deed duly authenticated being previously lodged ad interim in its stead.
This was a petition at the instance of Mrs Wyndham Rachael Tregonwell or Inglis, who resided at Druimuan, Perthshire, the widow of Major Raymond Inglis, who some time resided at Druimuan aforesaid. The petition narrated—That the said Major Inglis had died at Druimuan on the 2d September 1880, leaving a trust disposition and settlement dated 12th May 1873, with codicil appended thereto dated 23d December 1876, in favour of the petitioner and other persons therein mentioned, which disposition and settlement and codicil were recorded in the Books of Council and Session on the 23d of September 1880. That the petitioner on the 8th of June 1881 had brought a suit in the High Court of Justice in England (Probate Division) to obtain probate in her favour of the said disposition and settlement and codicil, but that the Judge in the said Court declined to decree probate unless the original disposition and settlement and codicil were produced in Court; that an extract duly authenticated was refused; and that no probate could be granted unless the original documents were produced.
The petitioner therefore prayed the Court “to grant warrant to and authorise the Principal Keeper of the Register of the Books of Council and Session, or other officers in charge of the said books, to deliver to the petitioner or her agents the disposition and settlement and codicil mentioned in the foregoing petition, for the purpose of being exhibited to the President of the Probate Division of the High Court of Justice in England, on her or their granting bond of caution with sufficient security to return the same to the said Principal
Keeper of the Books of Council and Session within one month, an official extract of the said disposition and settlement and codicil duly authenticated being previously lodged in their stead.”
The following cases were cited in support of the petition— Dunlop, November 30, 1861, 24 D. 107; Bayley, May 31, 1862, 24 D. 1024; Jolly, June 25, 1864, 2 Macph. 1288; Young, February 2, 1866, 4 Macph. 344; M'Donald, November 3, 1877, 5 R. 44; Kennedy, July 13, 1880, 7 R. 1129.
At advising—
The former case of Dunlop was a decision in the same direction, but there the petitioner was the only party interested in the deed. In M'Donald's case, as here, it was the executor under the deed who petitioned, yet the Court thought that that came so near the case of Dunlop that they granted the prayer of the petition, and I think we should do so here.
The Court granted warrant as craved.
Counsel for Petitioner— Muirhead. Agents— J. A. Campbell & Lamond, C.S.