Scottish Court of Session Decisions

[1] The pursuers, three of the five children of the defender and the late Alexander Duncan, sue the defender for payment of their legitim together with the expenses of an action of count reckoning and payment they required to raise to ascertain the amount of the legitim fund.

[2] Alexander Duncan died on 8 June 1989. He left heritable and moveable estate and a holograph Will bequeathing his entire estate to his widow, the defender. Legitim was claimed but not paid and on 11 September 1995 the children required to raise an action of count reckoning and payment in the Court of Session. The defender in that action was the defender in the present action. She had been confirmed as executor by the sheriff of Tayside, Central and Fife on 8 November 1989; the executors nominated in the Will having resigned. The defender as executor was found liable to produce an accounting and in that action decree was granted in favour of the pursuers. The amount of the decree was £16,984.98 with interest at the rate of eight per cent per annum from 8 June 1989. No payment was made to the pursuers.

[3] It is averred in the present action and not denied that the defender as executor has transferred the whole net moveable estate of the deceased to herself and has applied such estate for her own benefit as an individual.

[4] The defence to the present action amongst other things would appear to challenge the current position of the legitim fund but, curiously, on the apparent basis that the estate should have been larger. The defender in the present action appears to think that by declining to pay the sum decerned for the pursuers would be obliged to provide her with some information she thinks they have.

[5] It is in these circumstances that the pursuers at procedure roll sought decree de plano in respect of the first part of each of their conclusions and a proof in respect of the second part of those conclusions, being the amount of expenses for which the defender, as executor and now, universal beneficiary, was liable.

[6] The defender at procedure roll sought to argue in terms of her Note of Argument which was essentially seeking to challenge the presence of funds in her hands and complaining about the alleged refusal of the pursuers "to assist the defender's investigation into alleged embezzlement of the deceased's life savings". In court she summarised her arguments as, firstly, that the amount of the moveable estate was not accurately estimated, secondly, that money was taken out of the deceased's estate and thirdly, that "I'd like to know what I am alleged to own"; "I'd like the money to be quantified"; "I'd like the answers I am entitled to".

[7] The pursuers' counsel set out clearly for the benefit of the court and the defender the applicable law. His presentation was clear and courteous. He explained that the pursuers had obtained their decree, that all the essential elements of the pursuers' case were admitted or not denied and that all the estate had been applied for the benefit the defender without the legal rights having been paid. Whatever the position of the amount of money now available, by paying out the estate she becomes liable personally. The law he said was summarised at paragraph 34-14 of Wilson & Duncan; Trust, Trustees and Executors 2^nd Edition as follows:

The authority cited for that proposition, Lamont's Trustees v Croom (1871) 9 M. 662 at page 668 states:

[8] The legal character of a claim for legal rights is discussed in Naismith v Boyes 1 F. (H.L.) 79 which puts such claims into the principle of Lamont's Trustees since the claim for legal rights is one of debt, albeit postponed to ordinary creditors.

[9] The pursuers' subsidiary ground was that the defender as beneficiary is in possession of the estate out of which the legal rights should have been paid. The defender's plea that the claim has prescribed is misconceived since the claim is not one which prescribes under section 6 of the Prescription and Limitation (Scotland) Act, 1973.

[10] The pursuers also argued that the interest which was claimed, at eight per cent per annum, was appropriate. That is the conclusion and that was the sum which the court decerned for in the action of count reckoning and payment. In these circumstances the said interest should be paid at that amount. He conceded that he would require to prove in respect of the second parts of each conclusion the amount of the unpaid account of expenses in the original action and that a proof thereanent would be necessary.

[11] The defender's argument as above noted consisted of a discussion of the administration of the estate prior to her becoming executor and an account of grievances she has with the former law agents and, it appeared, towards the pursuers. She raised the question of whether the funds averred as having been transferred to her by the pursuers were accurately described as moveable estate and argued that since they had been in part derived from the signed endowment policies in relation to her husband's share of their house that they should be heritable.

[12] There is no relevant defence in my opinion to the first part of the pursuers' conclusions. The executor was in the original action of count reckoning and payment found liable to make the payments concluded for with interest. She has failed to do so and has taken the benefit of the deceased's estate. Arguments about the quantification of the estate and of the conduct of the solicitors in the action are entirely separate issues and do not affect the merits of the present action. By paying away the estate to herself without payment of the debt due to the pursuers, by way of legitim subsequently ascertained and translated into a decree of court she has, on the principle in Lamont's Trustees, become personally liable. I will accordingly sustain the pursuers' third plea-in-law to the extent of granting decree to each of the pursuers in terms of the first part of their conclusions and quoad ultra allow a proof before answer.