Scottish Court of Session Decisions

William Schulze, Brunswickhill, Galashiels. petitioner, a non-naturalised alien enemy,

Page: 307↓

brought a petition in the Sheriff Court at Edinburgh wherein he craved the Court to decern him executor-dative qua father to his deceased son William Rudolph Hugo Schulze.

The petitioner averred—“(Cond. 1) The late William Rudolph Hugo Schulze, sometime chocolate manufacturer, residing at 19 Abercorn Terrace, Portobello, thereafter a private in the Cameron Highlanders, was killed in action in France on 18th July 1916, conform to certificate of death from War Office produced, and at the time of his death had his ordinary or principal domicile in the county of Edinburgh. The said deceased William Rudolph Hugo Schulze died intestate, unmarried, and without issue, survived by brothers and sisters. (Cond. 2) The pursuer is the father of the said deceased William Rudolph Hugo Schulze, and has right to one-half of his moveable estate. The pursuer was born in Germany, but he has resided and carried on business in this country for the past fifty-four years and owns heritable property in this country. He has not been naturalised, but he has duly complied with the provisions of the Aliens Restriction Act 1914, and relative Order in Council.” [The words in italics were added by way of amendment in the Inner House.]

The petitioner pleaded—“The pursuer being entitled to one-half of the personal estate of the said William Rudolph Hugo Schulze, is entitled to be decerned his executor-dative.”

The Sheriff-Substitute ( Guy) refused the petition.

Note.—“This is an application at the instance of William Schulze, residing at Brunswickhill, Galashiels, to be decerned executor-dative qua father of the deceased William Rudolph Hugo Schulze, designed as sometime chocolate manufacturer, residing at 19 Abercorn Terrace, Portobello, and thereafter a private in the Cameron Highlanders. When the application came before me on a motion to grant the prayer thereof, the Depute Commissary Clerk called my attention to the fact that the applicant was an alien enemy, viz., a German. This statement was confirmed by the agent for the applicant. It was further stated to me that the deceased son of the applicant was British born, and at the date when he was killed in action was a private soldier in His Majesty's army. I have refused the application because in my opinion no alien enemy during the continuance of the present war should be entitled to hold the office of executor to any deceased British subject. The agent for the applicant argued that the matter for consideration was similar to the question whether the alien enemy might be entitled to sue an action in our Courts during the continuance of the war, but I think that the two things are essentially different. The executor to be appointed has the duty of ingathering estate, possibly from British subjects; he is also under a trust obligation to pay debts which may be debts due to British subjects. The agent for the applicant pointed out that the appointment of executor was one thing but that confirmation was another. That may be quite true, but the appointment would be followed executorially by confirmation without any further application to the Court provided the usual procedure is followed, and I could only prevent confirmation following as a matter of course upon the appointment by suspending the issue of confirmation until further orders of Court or making some such order. It is much more convenient that the matter should be determined at this stage. For these reasons I have refused the application. I may add that the application discloses that the deceased was survived by brothers and sisters as well as by his father, and I am informed that the brothers and sisters are, like the deceased himself, British born.”

The pursuer appealed, and argued—The Sheriff-Substitute had no discretion in this matter. From the documents now produced it appeared that the deceased's sisters declined the office, and his brothers, one serving in France and the other in East Africa, were ineligible and made no opposition. The Sheriff-Substitute had mistaken the position of an alien enemy resident in this country. The test for civil rights was residence and not nationality. The fact that the pursuer was permitted to reside in this country bestowed on him the King's protection, and secured for him civil rights quoad property— Princess Thurn and Taxis v. Moffitt, [1915] 1 Ch. 58. There was no restriction imposed with regard to the property of alien enemies in this country. The restrictions were only directed against their freedom of personal movement— Porter v. Freudenberg, (1915) 1 K.B. 857, per Lord Reading, C.-J., at p. 867. Caution had to be and would be found for the full amount—Currie, Confirmation, p. 197. The pursuer was an alien under the protection of the Crown quoad his civil rights. An interned enemy alien could sue in the courts in this country. This was necessary to enable him to ingather sums due to him so as to meet his liabilities and prevent his creditors from suffering— Schaffenius v. Goldberg, (1916) 1 K.B. 284, per J. Younger at p. 291. There was no competition here, and therefore the pursuer was entitled to be decerned as executor-dative. The father's right to one-half of the estate was statutory—Intestate Moveable Succession (Scotland) Act 1855 (18 and 19 Vict. cap. 23), sec. 3. On the title of a father to be appointed an executor-dative to his deceased son counsel cited Webster v. Shirress, (1878) 6 R. 102, 16 S.L.R. 45.

At advising—