Scottish Court of Session Decisions

George Kerr presented an initial writ in the Sheriff Court at Duns, in which he asked the Court for warrant to the Sheriff-Clerk “for issue of confirmation in favour of pursuer as sole executor-nominate of the said deceased William Simpson, who died at Laverock Braes on the 31st day of August 1911, under the disposition and settlement of the said William Simpson, therein designed as son of the late Sir James Young Simpson of Strathavon, Baronet, and then residing at Fleurs, near Coldingham, in the county of Berwick, dated 18th June 1904, and registered in the Books of Council and Session on 7th September 1911, and an inventory of whose personal estate, along with an extract of the said disposition and settlement sworn with reference thereto, has already been lodged with the Sheriff-Clerk by the pursuer, and confirmation applied for by him in the ordinary manner, but intimation has been received from the Sheriff-Clerk that confirmation cannot be issued without the special authority of the Court, in respect that caveats have been lodged on behalf of” certain persons.

The Sheriff-Substitute ( MacaulaySmith) appointed the caveators to lodge objections, if so advised, within six days, and objections were lodged for (1) David Simpson and others, the trustees and executors appointed under a trust-disposition and settlement of the said deceased William Simpson, dated 18th July 1892, and (2) Miss Evelyn Blantyre Simpson, sole next-of-kin of William Simpson.

The objectors averred that the deceased William Simpson was a person of weak mind and character, and that he was addicted to drink. They further averred, inter alia—“(Obj. 3) The petitioner entered the deceased's service a number of years before the date of the pretended settlement and soon acquired considerable influence over his master. All through the period of his service he pandered to his master's tendency to take too much drink, thus gradually increasing his influence until he obtained complete ascendancy over him. The petitioner used the influence thus gained for the purpose of alienating the deceased from his relatives and isolating him from them and his other friends. Prior to the petitioner entering his service the deceased was intimate with and fond of all his relatives. He was also always glad to welcome and receive other friends. After the advent of the petitioner a gradual change took place in this respect. For some time he continued to receive his relatives and friends, but when the petitioner was present was rude and surly to them. If the petitioner was absent he was pleasant to them and appeared to enjoy their society. The petitioner gradually assumed the position of master of the house, excluded the deceased's friends, and finally erected barricades across the door of the house to prevent persons entering without his consent. When matters were in this state the petitioner took advantage of the deceased's weakness and facility and obtained the pretended settlement of 18th June 1904 by fraud and circumvention. The said pretended settlement, which is referred to for its terms, purports to convey the whole of the deceased's property to the petitioner, with the exception of a legacy of £50 to his housekeeper. When the petitioner entered the deceased's service he received wages of £24 a-year, and while it is presumed that he received larger wages during the latter part of his service, he is a person of no credit and substance and is of dissipated habits. There is therefore serious risk of the deceased's estate being lost if confirmation is granted in the petitioner's favour.”

The objectors pleaded—“(1) The objectors having raised an action for the reduction of the disposition and settlement founded on by the petitioner, and there being serious risk of the estate being lost, or at least administered to the disadvantage of the objectors, in the event of confirmation being granted to the petitioner, the present proceedings should be sisted pending a decision in the said action of reduction. (2) The disposition and settlement in virtue of which confirmation is sought having been obtained from the deceased when he was weak and facile by the fraud and circumvention of the petitioner, the crave of the initial writ should be refused.”

On 8th December 1911 the Sheriff-Substitute pronounced this interlocutor—“The Sheriff-Substitute having heard counsel for the objectors and the agent for the pursuer, and considered the closed record and productions, grants warrant to issue confirmation as craved: Finds the objectors liable to the pursuer in expenses.”

The objectors appealed to the Sheriff ( Chisholm), who on 2nd January 1912 pronounced this interlocutor—“Sustains the appeal: Recals the interlocutor of the Sheriff-Substitute of 8th December 1911: Sists proceedings in this case pending a decision in the action of reduction of the disposition and settlement founded on by the petitioner, which has been raised by the objectors in the Court of Session: Reserves to the petitioner right to apply to the Sheriff for recal of said sist in the event of undue delay on the part of the objectors in prosecuting said action of reduction, or in an application to the Court of Session which they have undertaken to make for the appointment of a judicial factor to hold and administer the estate until the rights of parties are determined: And reserves the decision of the question of expenses in the proceedings before the Sheriff-Substitute and in this appeal.”

Note.—“In this case the petitioner is the executor-nominate under a disposition and settlement dated in 1904. The objectors have raised in the Court of Session an action for reduction of that deed. The petitioner craves confirmation as executor foresaid. The objectors ask the Court to sist the confirmation proceedings on the ground that, pending the decision in the action of reduction, there is risk of

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the estate being dissipated in consequence of the alleged financial position and the alleged habits and character of the petitioner.

“I gather from the authorities that in deciding such a question as this it is to the averments of the objector that one must look. In the decided cases it is the objector's averments that are founded on where confirmation is refused, and it is on the absence or insufficiency of these that comment is made where confirmation is granted. Such averments of course are made at the risk of the objector. If they be not established ultimately by proof he must suffer the consequences.

The question therefore is whether in the light of the reported decisions the objectors have made averments sufficient to entitle them to a sist of confirmation. Not altogether without difficulty I have come to be of opinion that they have done so. In the allegations (set forth in the objections) which form the grounds on which the action of reduction has been raised, there is a good deal which cannot fairly be left out of sight as relevant averment in this process. The objectors further aver that the petitioner ‘is a person of no credit and substance and is of dissipated habits. There is therefore serious risk of the deceased's estate being lost if confirmation is granted in the petitioner's favour.’ This is bald. It does not come up to the amended averment in the case of Campbell v. Barber, 23 R. 90: but it seems to me just to amount to what was desiderated in the case of Hamilton v. Hardie, 16 R. 192, e.g., per Lord Shand at p. 198, when taken along with the consideration, there also indicated, that an action of reduction has actually been raised in the present case and not merely indicated or threatened.

The objectors undertake to make application for the appointment of a judicial factor to safeguard the estate pending the determination of the rights of parties.

For these reasons I think I am warranted in sisting the proceedings in the confirmation.”

The pursuer appealed, and argued—The fact that a reduction of the will was being brought was not sufficient ground for refusing confirmation to an executor-nominate— Graham v. Bannerman, February 28, 1822, 1 S. 362 (2nd ed. 339); Hamilton v. Hardie, December 7, 1888, 16 R. 192, 26 S.L.R. 140. It made no difference that the action was already raised. The averments as to danger to the estate were very flimsy, and did not come up to what was desiderated by Lord Shand in Hamilton at p. 198, nor to the averments in Campbell v. Barber, November 7, 1895, 23 R. 90, 33 S.L.R. 59; in particular, there were no specific averments as to either the conduct or intentions of the pursuer. It was not in the interest of the estate to sist the application, for it consisted to a large extent of a farm which had to be administered.

Counsel for the objectors were not called upon.