Scottish Court of Session Decisions

John Bell, merchant in Glasgow, died there intestate in March 1880, leaving a large amount of property both heritable and moveable. He was carrying on several large businesses there up to the time of his death. James Bell, letterpress printer, was duly served heir-at-law in general to him in October following. The next-of-kin of the deceased were at his death found to be comparatively poor people, and unable to find the caution required to enable any of them to be decerned executors on the estate. A petition for sequestration was accordingly presented in April 1880 at the instance of certain of Mr Bell's creditors, on which a deliverance was pronounced by the Lord Ordinary in September following, sequestrating the whole estate and effects of the deceased. In this sequestration Alexander Moore, accountant, was appointed trustee. On 7th November 1881 James Bell, the heir-at-law, raised this action against Moore, as trustee on the deceased John Bell's sequestrated estate, to have it found that he was in right of the heritable property under the defender's management which had belonged to the deceased, and to have him ordained to convey it to the pursuer. The pursuer averred that all admitted claims against the deceased's estate had been already paid in full, and that the defender had, besides, in his own hands, or consigned in bank, funds sufficient to meet the whole claims still outstanding, should they be found entitled to a ranking, and in addition thereto a balance of more than £50,000. He also averred that the defender's management of the heritable property was very expensive, and was causing great loss to him. These statements, with the exception of the last, were not disputed by the defender. In particular, the balance of upwards of £50,000 was brought out in a state of the funds of the sequestrated estate prepared by the defender himself as at 29th August 1882. He however resisted the pursuer's claim, averring that there were important questions still unsettled between heir and executor, and that there were two other parties each laying claim to be the heir-at-law of the deceased. The defender also stated that he had not completed any title to the properties in question, and did not intend to do so, his right to them standing on his act and warrant. Before the record was closed the pursuer died, and the action was insisted in by William Bell and others, his testamentary trustees.

The pursuer pleaded—“(1) The pursuer, as heir-at-law duly served to the deceased John Bell, is entitled to decree as concluded for, in respect the whole debts due by the sequestrated estate have been paid or provided for. (3) The pursuers, as in right of the heir-at-law, are entitled to the possession and management of the subjects mentioned in the summons free from the interference of the defender, and they are also entitled to delivery and possession of the whole writs, titles, evidents, and securities thereof.”

The defender pleaded—“(1) The present action is unnecessary, and ought to be dismissed, in respect that the sequestration being merely a burden on the radical right to the property of Mr Bell's heir-at-law, such heir can complete his title to any right which Mr Bell would in the present position of the sequestration have had by recording a notarial instrument on his service, or otherwise, without either conveyances or adjudications as concluded for. (2) It being no part of the defender's duty as trustee to decide as to the respective rights of the heir-at-law and the executors in the sequestrated estates so far as not required to pay the creditors, or as to the parties entitled to be heir and executors respectively, he is only bound to denude under an order of Court in proceedings to which all interested are parties or have been called. (3) Questions having arisen between the heir-at-law and the next-of-kin as to their respective rights in Mr Bell's succession, so far as not required to pay creditors, the defender is not in safety to convey the properties in question without judicial authority, and without all parties interested being called. (4) All parties interested are not called. The next-of-kin, and other parties claiming to be heirs-at-law of the late John Bell, ought to have been called as defenders hereto. (5) In the whole circumstances, this action is incompetent, or at least premature, and ought to be dismissed with expenses.”

The Lord Ordinary repelled the defences and decerned against the defender conform to the whole conclusions of the action.

Page: 261↓

The defender reclaimed, and argued—An attempt like this to take any part of a sequestrated estate out of the universitas which was vested in the trustee by statutory title was contrary to the provisions of the Bankruptcy Acts.—Bankruptcy (Scotland) Act 1856, sec. 155; Anderson, March 13, 1866, 4 Macph. 577.

Argued for pursuers—If there was no provision in the Bankruptcy Acts for such a proceeding as that proposed by the pursuers here, there was certainly none against it. The pursuers' demand was a reasonable one, and the objections to it were frivolous. The pursuers' case was an appeal to the nobile officium of the Court.

At advising—