Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

2015SCGLA28

F623/14

F647/14

N O T E

By

SHERIFF JOHN N. MCCORMICK

Re

LOUISE JACQUELINE FORD

Original Petitioner

as opposed by

YVONNE MAUREEN KILGOUR or CAMPBELL

Objector & Petitioner

GLASGOW, 24^th March 2015.

[1]        This note involves commissary.  Louise Ford sought appointment as executrix-dative to the estate of her late mother, Lily Kilgour.

[2]        Yvonne Campbell lodged a note of objection to the petition by her sister along with a petition craving appointment as either sole executrix-dative or co-executrix-dative.

[3]        Both petitioners are daughters of the deceased. 

[4]        Two issues fell to be determined.  Firstly, does the court have discretion to choose between two individuals within the same category of relationship to a deceased, in this case, daughters?  Secondly, if there is discretion how should it be exercised?

[5]        Following the procedure outlined in paragraphs 19-09 to 19-13 within the 9th edition of Currie on Confirmation of Executors by Eilidh M Scobie, parties had agreed the issue would be determined at a hearing on 27 February 2015.  Answers were lodged to one petition but, by agreement, both writs were disposed of together.   Pleadings were adjusted, a record prepared and a joint list of authorities tendered.   If the court had discretion to choose between the parties, it was agreed that I should determine the matter by affidavit evidence. 

[6]        There was urgency here as the property was vacant and uninsured and interest was accruing on an unpaid liability in respect of care home fees. 

[7]        On 27 February 2015 I concluded that the court has no discretion to refuse appointment to those within the same category of relationship to the deceased.   The court’s role is administrative, not judicial.   I followed Russo v Russo 1998 SLT (Sh Ct) 32.

[8]        I issued my extempore decision on 27 February and indicated that I may write a note which I now do. 

[9]        Yvonne Campbell was represented by Miss Gordon, solicitor and Louise Ford by Mr Fairbridge, solicitor.

Submissions on behalf of Yvonne Campbell

[10]      Miss Gordon referred to Currie at paragraph 7-02 (for the proposition that more than one executor can be appointed) and paragraph 7-04 (there is no such thing as a limited appointment of an executor-dative).  

[11]      Here, Yvonne Campbell craves appointment as either executor or co-executor.  While she has concerns about the activities of her sister as outlined on record, the court has no discretion and is obliged to appoint both parties as co-executors.  This is because both are daughters of the deceased.

[12]      Miss Gordon referred to the opinion on Sheriff Principal Cox in Russo v Russo 1998 SLT (Sh Ct) 32 at page 35F-G; K-L and page 36D.

[13]      Sheriff Principal Cox had considered Lady Denman v Torry (1899) 1 F 881; William Schulze 1917 SC 400 and Victor Crolla 1942 SC 21.  Sheriff Principal Cox had concluded that there was no discretion in circumstances such as this. 

[14]      The case of Russo was persuasive rather than binding on me but for the reasons outlined within it, it should be followed. 

Submissions on behalf of Louise Ford

[15]      Mr Fairbridge referred to Currie at paragraph 7-42 and candidly accepted that, taken together, the case of Russo and the comments within Currie are compelling.  However, he sought to argue that the authorities referred to within Russo were fact specific and, on analysis, did not exclude the possibility of the court exercising discretion in choosing between executors of the same category.  If that is correct, Russo was wrongly decided and there is, or should be, discretion to decide competing petitions.  Russo is persuasive not binding. 

[16]      Mr Fairbridge quite properly conceded that if he was correct in his submission that the court does have discretion, that conclusion might jeopardise the entitlement of his client, Louise Ford, to be appointed as either executrix-dative or as co-executrix-dative.

[17]      This is because the record included a range of averments critical of his client while she had acted as guardian to her mother, Lily Kilgour.  It had been averred that in the years prior to her death Lily Kilgour’s home had been left unsold, uninsured, vacant and used to store items, including a motor bike which had been spray painted in the lounge.  Photographs of the condition of the property were produced.  I express no opinion on the veracity of these averments.

[18]      In developing his argument, Mr Fairbridge observed that in the case of William Schulze and in the case of Victor Crolla, there had been no competition for appointment.  Both cases had been unusual and fact specific.  William Schulze was an unnaturalised German subject residing in Galashiels.  The sheriff-substitute had dismissed his petition for appointment as executor-dative to his son’s estate on the basis that the petitioner was an enemy alien.  This decision was reversed on appeal.  However, there had been no competition for appointment.  

[19]      The case of Victor Crolla had concerned his petition for appointment as executor-dative on his father’s estate.  Victor Crolla was a British subject detained in an internment camp on the Isle of Man.  Here again there was no competing petition before the court.  Mr Fairbridge referred to page 23 of the opinion where Lord Justice-Clerk Cooper opines:

“I do not think that it would be appropriate, without more exhaustive argument in a contested case, that we should attempt to decide whether the court has any discretion in a case of this kind in selecting or declining to select an applicant for the office of executor-dative.”

[20]      Mr Fairbridge observed that ultimately the camp commandant had provided an assurance that Mr Crolla could overcome the practical difficulties in fulfilling his duties as an executor which had given cause to the sheriff-substitute to refuse the application for confirmation.  That undertaking had allowed the petition to be granted on appeal.

[21]      The case of Lady Denman v Torry had involved an entirely different set of circumstances.  Here there was competition for appointment.  John Torry argued that the words “my executor, Mr Torry, to get £100” impliedly or expressly provided that Mr Torry (who had been the solicitor of the deceased, Helen Aitchison) was to be her executor-nominate.  The court disagreed with that interpretation and appointed the sister of the deceased, Lady Denman, as executrix-dative qua next of kin. 

[22]      Mr Fairbridge argued that Sheriff Principal Cox in Russo had misinterpreted these cases which had not excluded the possibility that the court had discretion.

[23]      If there is discretion then the affidavits ought to be considered. 

[24]      Mr Fairbridge moved on to criticise aspects of the affidavits but I do not require to record those criticisms nor Miss Gordon’s reply.

Decision

[25]      I accept that there are aspects of the historical case law which admit to the possibility of discretion.  In 1917 in William Schulze Lord Guthrie said at page 403:

“Had any of the deceased’s brothers or sisters, who are all British subjects, desired the office, it might well have been that the Court, in the exercise of its discretion, would have preferred one or more of them to the office.  But it clearly appears that the deceased’s brothers are not in a position to perform the duties of executors, because they are abroad in His Majesty’s Forces, and the deceased’s sisters have formally stated that they do not desire the office.”

This might imply that the court does have discretion but such an approach is dispelled by the careful reasoning adopted by Sheriff Principal Cox in Russo. 

[26]      At page 35J Sheriff Principal Cox, after quoting from the 1902 edition of Currie, comments that:

“In none of these references, old or new, is there the slightest suggestion that a person entitled to the office of executor-dative can be denied appointment on the ground, for example,  that he is corrupt or incapable of conducting business affairs.  The whole emphasis is on entitlement to the office.  Where there is a contest the contest concerns who has the greater right, ie. who is the nearest in kin and therefore having, on intestacy at least, the better claim to the estate.”

[27]      At page 36E Sheriff Principal Cox says: “In the case of intestacy the nearest in line of succession having been identified are entitled as a matter of right and not of judicial discretion to be appointed”.

[28]      The Russo appeal had arisen after a ten day proof followed by three days of submissions where the sheriff had concluded that he did have discretion to appoint one son as executor-dative in preference to the other.  On appeal, after reviewing the authorities, the Sheriff Principal allowed the appeal and appointed both brothers executors-dative.  Sheriff Principal Cox concluded that if the sheriff had had discretion, he had exercised it appropriately (page 39I).  However, the sheriff did not have discretion. 

[29]      Difficulties can arise where two warring executors are appointed.  The court can appoint only those having both an entitlement and a desire for appointment.  Remedies exist in the event of stalemate or an executor mismanaging the estate.  On page 36L Sheriff Principal Cox observed: “There are checks and balances.  All those within the same degree are entitled to be appointed.  They may keep an eye on each other” and, at page 37E to F, he concluded:

“If anticipation of future performance in office of an applicant cannot be ground for objecting to his or her appointment as executor-dative, by parity of reasoning once discerned executor-dative, but before being granted confirmation, the appointment cannot be recalled because of a similar dire prognosis…Both parties are in my view entitled to be discerned executors-dative qua next of kin.”

[30]      No conflicting or subsequent authority was quoted to me.  I see no basis to distinguish the current case from Russo.  Here two daughters are vying with each other for appointment.  In Russo there were two sons.  The court’s role is an administrative one, not judicial, where both petitioners are in the same category of relationship to the deceased.  I conclude this while recognising that there may be cases where, as here, criticisms are levied at a petitioner craving appointment on the basis that he or she is unsuitable, having mismanaged the affairs of a deceased while acting as guardian and may continue to do so.  However, I agree with the opinion of Sheriff Principal Cox in Russo.  It is reasoned, persuasive and I propose to follow it.  There is no discretion. 

[31]      Accordingly, I granted the petitions and appointed both petitioners as executrices-dative qua daughters to the deceased.

                                                                                             ……………………………..Sheriff