Scottish Court of Session Decisions

Captain William Edward Foster of Stockeld, Yorkshire, pursuer, brought an action against Herbert Anderton Foster, Queens-bury, Yorkshire, and Edward Hornby Foster, Shibden Head, near Halifax, Yorkshire, trustees and executors acting under the testamentary writings of his uncle the late Frederick Charles Foster of Faskally, and of Prospect House, Queensbury, Yorkshire, namely, his will dated 12th June 1914 and holograph testamentary writings made

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by him on 11th August 1921, defenders, concluding, inter alia, for declarator that the holograph writings written in pencil on 11th August 1921 by the said deceased Frederick Charles Foster upon a typewritten epitome of his will dated 12th June 1914 constituted valid and effectual bequests to the pursuer of (first) one-fourth of the said deceased Frederick Charles Foster's holding in John Foster & Son, Limited; (second) the Faskally and Ballyoukan estates in the county of Perth owned by the deceased Frederick Charles Foster at the date of his death; and (third) the sum of One hundred thousand pounds sterling.

At the time of his death the deceased Frederick Charles Foster, who was a domiciled Englishman, was possessed of considerable estate in England, including the moveable estate to which the conclusions of the action related, the estate of Faskally and Ballyoukan being his only property in Scotland. The defenders, who were his brothers were domiciled in England. When the action was raised proceedings at their instance were already pending in the Probate Division of the English High Court for the purpose of deciding as to the admission to probate of the deceased's will and other writings of a testamentary nature left by him, including the pencilled writings in question. In these proceedings the pursuer had been cited as a defendant, as being interested in these pencilled writings.

The defenders pleaded, inter alia—“1. No jurisdiction. 2. Forum non conveniens. 3. Lis alibi pendens. 4. All parties not called.”

On 31st May 1922 the Lord Ordinary ( Sands) repelled the first, second, and third pleas-in-law for the defenders,

Opinion.—“In this case there is a plea to the jurisdiction, but it was not insisted in.

The plea of forum non conveniens was, however, keenly argued. The question is raised in the case as to whether the estate of Faskally in Perthshire is validly bequeathed by certain writings executed in Scotland. In my view that is a question appropriate to the Scottish Courts, and a question upon which the Scottish Courts alone can pronounce effective judgment.

The question might have presented a different aspect if the disputed writings had dealt with personalty alone. As regards the alleged bequests of personalty there are three questions—(1) whether the writings are executed according to the requirements of Scottish law; (2) whether the writings are part of the testament of the deceased; and (3) what is the meaning of the writings. If the first had been the only question, the Scottish Courts, notwithstanding the statutory facilities for invoking their assistance indirectly, would probably have been the appropriate tribunal for the direct determination of the matter. But there is some force in the contention that as regards the other questions the appropriate tribunal is the Court of Probate of the testator's domicile. No suggestion was made that I should deal with this plea distributively as between heritage and moveables, and the directions are so entertwined that this would probably not be a convenient course.

I shall accordingly repel the plea of forum non conveniens.

The plea of lis alibi pendens is admittedly not maintainable as a substantive plea.

The defenders also plead (4) ‘All parties are not called.’ As regards the pecuniary legatees, they are none of them, with one trifling exception, subject to the jurisdiction of the Scottish Courts. They have no interest which is not protected by the attitude which the defenders have adopted. The defenders have it in their power to certiorate them of the dependence of these proceedings if they deem it their duty to do so. The case of the relative to whom the properties are bequeathed under the original will is perhaps more doubtful. He is convened as a trustee, and counsel stated at the bar that they were watching the case on his behalf. The point is therefore a technical one. But though the difficulty may be technical it may be for consideration whether it should not be obviated. Meantime I do not dispose of this plea as it was not fully argued.

I shall accordingly repel the first, second, and third of the defenders' pleas-in-law and continue the cause.”

The defenders reclaimed, and argued—The plea of forum non conveniens should be sustained. All the factors of convenience were in favour of the English Courts. It was an English trust, the bulk of the estate was in England, all the beneficiaries except one were English, and the proceedings in the English Courts, which would deal with the questions raised here, were commenced prior to this action. The fact that part of the heritage was in Scotland was no ground for upholding exclusive jurisdiction of the Scottish Court. There was concurrent jurisdiction, and the English Courts could deal with the universitas of a trust estate and apply Scots law where that law was appropriate—M'Laren, Wills and Succession, vol. i, pp. 56 and 57: Allan's Trustees, 1896, 24 R. 238, 34 S.L.R. 166; Orr Ewing's Trustees v. Orr Ewing, 1885, 13 R. (H.L.), 1, per Lord Chancellor at p. 14, Lord Watson at pp. 23 and 24, 22 S.L.R. 911; Ewing v. Orr Ewing, 9 A.C. 34, per Lord Chancellor at p. 40; Ferguson v. Buchanan's Trustees, 1890, 18 R. 119, 28 S.L.R. 516; Morley v. Jackson, 1888, 16 R. 78, 26 S.L.R. 52. The Court was not bound to entertain the action when another Court had also jurisdiction, and if it did so here its decision might be contrary to the decision in the Probate Division. The action should therefore be dismissed or sisted until it appeared what the English Court was going to do. [Counsel also referred to the Wills Act 1861 (24 and 25 Vict., cap. 114).]

Argued for the respondents—The plea of forum non conveniens did not depend on the balance of consideration. If the Court had jurisdiction it was bound to entertain the action unless satisfied by the party objecting that to do so was against the interests of justice— Clements v. Macaulay, 1866, 4 Macph. 583, per the Lord Justice-Clerk at p. 593, 1 S.L.R. 90; Longworth v. Hope,

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1865, 3 Macph. 1049, per Lord Deas at p. 1058; Sim v. Robinow, 1892, 19 R. 665, per Lord Kinnear at p. 668, 29 S.L.R. 585. Priority of proceedings was not of importance. It might even be the duty of the Scotch Court to disregard what was done in the English Court— Orr Ewing's Trustees v. Orr Ewing, 1885, 13 R. (H L.), 1, per Lord Chancellor at p. 14 and Lord Watson at p. 25; Huntly v. Brooks' Trustees, 1901, 8 S.L.T. 399. The question here was purely one of Scots law and was therefore appropriate to the Scottish Courts. In any event there was not here a proper case of priority. The question was one which in England would fall to be dealt with in the Court of Chancery, and no proceedings had as yet been raised in that Court. On the other hand the question could be completely disposed of in the present action. Further, application of the plea of forum non conveniens was usually limited to cases of trust accounting or partnership, and was not extended to such cases as the present,

After the case had been argued, the pursuers, on the suggestion of the Court, moved for leave to amend the summons by calling Herbert Anderton Foster as an individual. The motion was granted and the summons was served upon Herbert Anderton Foster, who lodged defences. There was no further argument.

At advising—