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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Leigh-Bennett Petitioner [1893] ScotLR 30_711 (10 June 1893)
URL: http://www.bailii.org/scot/cases/ScotCS/1893/30SLR0711.html
Cite as: [1893] ScotLR 30_711, [1893] SLR 30_711
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SCOTTISH_SLR_Court_of_Session
Page: 711↓
Court of Session Inner House First Division.
Facts:
A domiciled Englishman died abroad leaving a will whereby he bequeathed his whole estate, subject to certain small legacies, to B, who was also a domiciled Englishman. The will made no reference to Scots estate, but having been transmitted after the testator's
Page: 712↓
death to agents in Scotland, was registered by them in the Books of Council and Session. B having subsequently applied for probate in England, the English Court refused to grant it unless exhibition was made of the original will, and issued a subpoena to the Deputy Clerk Register to produce it. On the petition of B, the Court, in the special circumstances of the case, and under the powers of the Act 31 and 32 Vict. cap. 34, section 1, authorised the Deputy Clerk Register, or other person authorised by him, to obey the subpoena, and to exhibit the will in the English Court, but directed that the will should not be parted with except under the authority of the English Court for the purposes of the probate suit.
William George Borthwick died at Pau on 22nd February 1893, leaving a will dated the same day in favour of Mr Henry Currie Leigh-Bennett of Thorpe Place in the county of Surrey, subject to certain small bequests. The deceased was a domiciled Englishman.
On 17th March 1893 the will was recorded in the Books of Council and Session.
On 8th June Mr Leigh-Bennettt presented a petition, in which, after setting forth the above facts, he stated that he had applied for probate in England, that the application was unopposed, but that the English Court refused to grant it unless the will was exhibited in Court, and had issued a subpoena to Mr Stair Agnew, the Deputy Clerk Register, or to any person authorised by him to obey it, to attend the English Court with the deed.
The petitioner therefore craved the Court “to grant warrant to and authorise and appoint the said Stair Agnew, or other person authorised by him to obey the said subpoena, to take with him and exhibit in the said Division of the High Court of Justice in England the said principal will for inspection at the hearing of the said suit.”
Argued for the petitioner—Down to 1861 the Court had frequently authorised its officers to take recorded deeds out of its jurisdiction, but of recent years the course usually followed was to authorise delivery of the deed to the petitioner's agent upon his finding caution to return it. The reason for the change of practice was explained in the case of Dunlop, November 30, 1861, 24 D. 107, to be that a deed sent in the custody of an officer of this Court had once been detained by the English Court. The petitioner believed that there was no fear of the deed in question being impounded. In the special circumstances of the case the application should be granted. The deed was holograph, and exhibition of the original document was necessary to prove that fact; it was executed by a domiciled Englishman, who possessed no real estate in Scotland; the petitioner, who was the party primarily interested in it, was a domiciled Englishman, and it had been registered without authority.
At advising (after consultation with the Second Division)—
It is the will of a certain William George Borthwick, who died at Pau in France, and the will, which is a very short one, has been read to us at the bar. We are told, and must proceed on the footing, that Mr Borthwick was a domiciled Englishman. The will contains no reference to Scots estate of any kind. And the circumstances explained to us at the bar, combined with the tenor of the deed itself, seem to show that it was more or less by casual circumstances that the will has been registered in the Books of Council and Session at all. The will is by a domiciled Englishman in favour of a domiciled Englishman as universal legatory. Now, it appears that probate has been craved in the Probate, Divorce, and Admiralty Division of the High Court of Justice in England. It is stated that the will is required in the English Court, and prima facie it is plain enough that in the administration of justice, viewing it not as an international question but as a whole, it is right that this writ should be produced in England. We have to attend to the peculiar circumstances of this writ in order to see what degree of authority we should give to the official who is in charge of it, and while I should be very slow indeed to grant any warrant which would give countenance to the idea that we shall in all circumstances place a deed which has been registered in the Books of Council and Session at the disposal of another Court, yet I think there is enough here to show that we shall further the cause of justice, and at the same time comply with the statutory limitations of our authority, if we authorise the keeper of the register to take with him this writ and exhibit it in the Probate Division of the High Court of Justice for inspection in the suit mentioned in the petition, and go on to direct him not to part with the same, except under the order of the Probate Division of the High Court for the purposes
Page: 713↓
The Court pronounced the following interlocutor:—
“The Lords having considered the petition, and heard counsel for the petitioner in the special circumstances of the case, and under the powers of the Act 31 and 32 Vict. cap. 34, sec. 1, grant warrant to, and authorise and appoint Stair Agnew, C.B., Advocate, Depute Clerk Register of Her Majesty's General Register House, Edinburgh, or other person authorised by him, to obey the subpoena issued on 6th June current by the Probate, Divorce, and Admiralty Division of the High Court of Justice in England, and to exhibit in said Division of said High Court the principal will of the late William George Borthwick mentioned in the petition for inspection at the hearing of the suit also mentioned in the petition; the said Stair Agnew or other person authorised by him not to part with the said will except only under the order of the said Division of said High Court for the purposes of the said suit, and decern.”
Counsel for the Petitioner— Blackburn. Agents— Russell & Dunlop, W.S.