Scottish Court of Session Decisions

Andrew Penny, a native of Scotland, died intestate on 18th May 1890 at Huanchaca in South America, leaving considerable heritable and moveable estate in Scotland and Bolivia.

Senora Maria Galindo de Penny obtained the administration of his estates in Bolivia from the Courts there. She averred that she was the widow of Andrew Penny, that he died a domiciled Bolivian, and that by the laws of that country she was entitled to the heritable estate there, and the whole moveable estate wherever situated.

The four sisters of Andrew Penny—Mrs Birnie, Mrs Christie, Mrs Mennie, and Mrs M'Intosh (who subsequently died)—were on 10th October 1890 decerned executrices-datives qua four of the next-of-kin. They denied the averment of Senora Maria Galindo de Penny both as to the marriage and as to the domicile of Andrew Penny, which they maintained had remained a Scottish domicile.

A large portion of the moveable estate in Great Britain consisted of a sum of £36,636, 7s. 9d., the proceeds of mineral ores consigned for sale by Andrew Penny during his lifetime, and which was in the hands of Messrs Gibbs & Sons, his London agents.

This sum the executrices claimed, and Messrs Gibbs & Sons thereupon raised an action of multiplepoinding, calling the executrices and Senora Maria Galindo de Penny as defenders, and consigned the fund in medio into the hands of the Court of Session.

On 20th August 1891 Senora Maria Galindo de Penny was married to William Craik, a Scotsman, and on 12th September 1891 he, as in right of his wife's whole estate under their marriage-contract, entered into an agreement with the agents of Mrs Christie and Mrs Mennie, by which they, as executrices and beneficiaries, withdrew their denial of the marriage of the late Andrew Penny, and agreed to accept £25,000 as in full of the claims of the next-of-kin.

The fourth article of the agreement was in the following terms—“Fourth. To enable the said first party (Craik) to be vested in the foresaid personal estate quam primum, the second parties bind and oblige their constituents (the said Mrs M'Intosh's trustees being bound only to the extent foresaid) to procure and deliver to the first party the necessary decree and authority of the Court of Session for his uplifting the sum consigned by the pursuers and real raisers in the said action of multiplepoinding, and also all assignations, conveyances, or transfers necessary for vesting in him the remainder of the personal or moveable estate belonging to the said deceased Andrew Penny; and in the event of the said Mrs Catherine Penny or Birnie not becoming a consenter to this agreement, the second parties bind their constituents as aforesaid to adopt and pursue all such competent judicial steps as the first party may direct, with the object of effectuating this agreement and arrangement.”

Shortly afterwards Mrs Christie and Mrs Mennie raised an action in the Sheriff Court at Aberdeen against the agents of the executry for delivery of all papers connected therewith.

Mrs Birnie, who had refused to accede to

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the agreement, and the children of a predeceasing brother of Andrew Penny, thereupon presented this petition to the Court for sequestration of the estate and appointment of a judicial factor.

They averred—“That it is essential that the administration should be taken out of the hands of the majority of the executrices and entrusted to a judicial factor. By entering into the agreement above referred to, the said executrices have acquired an interest adverse to the rights of the petitioners, and they have undertaken obligations which incapacitate them for properly discharging the duties which they owe to the petitioners with reference to the administration and recovery of the estate both in this country and in Bolivia.” There was a large amount of property besides the sum consigned in the multiplepoinding, which had not yet been recovered.

Answers were lodged for the other executrices, a brother of Andrew Penny, and the trustees of the deceased executrix, in which they denied that the agreement in any way prejudiced the petitioners or any of the next-of-kin in any steps they might take to assert their rights, as it only affected those who consented to it. They further averred that the application for a judicial factor was unnecessary, as most of the moveable estate was already in the hands of the Court, and they were about to raise another action of multiplepoinding and consign the remainder. Answers were also lodged in similar terms for Mr and Mrs Craik.

On 7th November 1891 the Lord Ordinary ( Low) refused the petition.

“ Opinion.—I am of opinion that the petitioners have not made out a case for the appointment of a judicial factor.

In the first place, as regards the moveable estate of the late Mr Penny in this country, a judicial factor is unnecessary, because the whole estate has been thrown into Court in a multiplepoinding, in which the petitioners will have an opportunity of establishing their claim.

In regard to any moveable estate which may be in Bolivia, I think that the petitioners can themselves take such steps as may be necessary to protect their rights.

The only other ground upon which the appointment of a judicial factor is asked is, that an action has been instituted in the Sheriff Court of Aberdeenshire against the Messrs Collie, advocates in Aberdeen, who were the executors' agents, for delivery of all papers in their hands connected with the executry. The action is said to be truly in the interests of Mr and Mrs Craik, and the petitioners say that it would be greatly to their prejudice if Mr and Mrs Craik were to be put in possession of documents and information which were obtained with the view of opposing Mrs Craik's claim to any part of Mr Penny's estate.

Counsel for the majority of the executors, however, undertook that they would not attempt to proceed further in the action pending the process of multiplepoinding, and I think that this is sufficient to safeguard the petitioners' interests in regard to the documents in Messrs Collie's possession.”

The petitioners reclaimed—The arguments of the several parties were substantially a repetition of the averments already stated.

At advising—