Scottish Court of Session Decisions

Thomas Buchanan died on 22nd September 1889, leaving a will dated 14th May 1889, in which he appointed his brother Robert Buchanan and his nephew Andrew Buchanan his executors. The deceased left moveable property to the value of over £8000, the bulk of which consisted of a sum standing to his credit in the books of a firm in Glasgow. The executors obtained probate in England on 21st October 1889, and were proceeding to administer the estate there when the testator's daughter Mrs Margaret Ferguson raised the present action against them in the Sheriff Court of Lanarkshire, in which she sought (1) to have it found that at the time of his death her father was a domiciled Scotsman; (2) to have the executors interdicted from distributing the estate on the footing that her father was a domiciled Englishman at the time of his death, without providing for the payment of her legitim, and from removing any funds belonging to the testator from the sheriffdom of Lanarkshire; and (3) to have the executors ordained to pay her a certain sum as legitim.

The Sheriff-Substitute having granted interim interdict, the executors raised an administration suit in the Chancery Division of the High Court of Justice in England, in which on 16th December 1889 Mr Justice Chitty appointed a receiver, and ordered certain inquiries to be made, and, inter alia, “(6) An inquiry whether the testator was at the time of his decease domiciled in England, and if it shall be found that the testator was not domiciled in England, where was his domicile, and in the event of its being found that the testator was domiciled in Scotland, (7) an inquiry whether the personal estate of the testator is subject to payment of any and what portion thereof to any child or children of the testator living at his death, notwithstanding the provisions of his said will.”

On 23rd December the pursuer brought an action in the Court of Session against the executors and beneficiaries under her

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father's will, concluding, inter alia, for reduction of the will, and for declarator that her father was at the date of his death a domiciled Scotsman, and that she was entitled to legitim out of his moveable estate; and for interdict against the defenders withdrawing the deceased's estate from Scotland.

On 24th December the Sheriff-Substitute ( Spens) sisted the present action till the issue of the action in the Court of Session. In that action the conclusion for reduction was abandoned, and on 15th November 1890 the Second Division dismissed the action with expenses, holding that the Court of Chancery was the proper forum for determining the question of the deceased's domicile and the pursuer's right to legitim. ( Ante, p. 100, and 18 R. 120.)

On 27th November 1890, consideration of the present action having been resumed, the Sheriff-Substitute recalled the interim interdict and dismissed the action, finding no expenses due. The defenders appealed to the Sheriff, and pending the appeal uplifted the funds of the testator which were in Glasgow, and transmitted them to the Receiver in Chancery.

On 27th December the Sheriff ( Berry) at the request of parties recalled the interlocutor appealed against, and remitted the case back to the Sheriff-Substitute.

On 15th January 1891, in the administration suit, Mr Justice Chitty decided, after an inquiry in which the testator's daughter did not appear, that the testator was at the time of his death a domiciled Englishman.

Thereafter parties were allowed to revise their pleadings in the present action, and the defenders set forth the proceedings in the Court of Session and the Court of Chancery, and pleaded res judicata.

On 16th February 1891, the record having again been closed, the Sheriff-Substitute dismissed the action.

The pursuer appealed, and argued— Primâ facie, this was a case for the Scottish Courts, the pursuer and defenders being Scotch, and the bulk of the estate being situated in Scotland— Brown v. Maxwell's Executors, July 17, 1883, 10 R. 1235. The pursuer was no party to the proceedings in the Court of Chancery, and a decision pronounced there could not be res judicata against her. Further, she was not precluded from proceeding with the present action either by the decision of the Second Division in the action before them or by the proceedings in Chancery, because the questions of her father's domicile and her right to legitim were first raised in the present action. The fact that these questions were first raised in Scotland did not appear to have been put before the Second Division. If they had been, probably the decision of that Court would have been different from what it was. The competency of an action must be judged of at the time it was raised, and this action having then been competent the pursuer was entitled to have the questions raised by it considered.

The defenders argued—The pursuer had superseded the present action by raising the action in the Court of Session, and in that action the Second Division had decided that the Court of Chancery was the proper forum for determining the questions now sought to be raised here. Following upon that decision the English Court had disposed of these questions, and it was impossible for the pursuer to reopen them in this action.

At advising—