Scottish Court of Session Decisions

Lord Low—“My opinion is that the question raised here is ruled by the decision in the case of Ferrie v. Ferrie. Mr Welsh founded upon certain differences which exist between the position of executor and the position of testamentary trustee, and no doubt there are differences. But the material point in this case is that the gentleman who acted as notary was nominated sole executor and intromitter in the settlement which he executed as notary. Now, of course, as sole executor and intromitter he was entitled to ingather and administer the whole estate, and that I think is the very disqualification to which the Court gave effect in the case of Ferrie. I think it cannot he doubted that a person who is nominated sole executor and intromitter under a settlement cannot competently act as notary in the execution of that settlement.

“But then it was argued that this was an exceptional case, the kind of case which Lord Deas shadowed in his judgment in the case of Ferrie as a possible exception to the rule there laid down. But even assuming that the case figured by Lord Deas would form an exception, this case does not come up to it, because it is admitted that other gentlemen competent to act as notaries were within reach, and among others the very medical gentleman who was attending the testator. So far from there being special circumstances in this case to make it an exception to the rule, it seems to me to be a strong case for the application of the rule, because Mr Macrae was not only the notary who executed the settlement, but he himself had prepared it. I shall therefore sustain the first plea-in-law for the pursuers and grant decree of reduction.”

Decree of reduction was pronounced.