Scottish Court of Session Decisions

Archibald Henderson, watchmaker and jeweller, Edinburgh, left a holograph will, by which he divided his property among certain persons mentioned therein. The will concluded with this clause—“I appoint Mr Henry Tod, 45 North Castle Street, or his partner Mr Rutherfurd, judicial factor, to carry out the purposes of this trust.” Mr Tod presented a petition in the Sheriff Court of the Lothians and Peebles at Edinburgh for confirmation “as executor-nominate of the deceased Archibald Henderson.”

The Sheriff-Substitute ( Rutherfurd) refused the prayer of the petition.

“ Note.—The objection to grant this petition is not that the petitioner has not been expressly named ‘executor,” but that he has been named something else. It is not uncommon in practice to confirm as executor-nominate a person upon whom executorial powers are conferred though not expressly named executor by the deceased. But in this case the testator has named a ‘judicial factor,’ whose office differs from that of executor-nominate in this important respect, that the factor finds caution, while the executor-nominate does not.”

The petitioner appealed.

The Court pronounced this interlocutor—

“Recal the interlocutor of the Sheriff-Substitute appealed against, and remit the cause to the Sheriff with instructions to grant the prayer of the petition, and decern.”