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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mores' Executors v Malcolm, &c. [1835] CA 13_313 (24 January 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0313.html
Cite as: [1835] CA 13_313

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SCOTTISH_Shaw_Court_of_Session

Page: 313↓

Mores' Executors

v.

Malcolm, &c.
No. 102.

Court of Session

2d Division

Jan. 24 1835

Lord Jeffrey T., Lord Glenlee, Lord Justice-Clerk, Lord Medwyn

Mores' Executors,     Nominal Raisers.— Skene— Monro. Peter Malcolm and Others,     Objectors.— Sol.-Gen. M'Neill— Moir.

Subject_Executors—Trust.—

1. Executors delayed to raise action of relief against two parties, co-acceptors of bills with the deceased, which had been retired by him, on the ground (as stated by them) that one of their number, who had been agent for the deceased, knew that the bills had been granted for his accommodation; but in consequence of a suggestion by an accountant in a process relative to their management, they raised an action after the lapse of six years, when the sexennial prescription was pleaded and sustained, and on a reference to the oaths of the co-acceptors, they deponed that they had signed the bills for the accommodation of the deceased, and were assoilzied—held, that the executors were not liable for the amount of their shares. 2. Held that the executors were not liable for a deduction from a claim against an insolvent estate, awarded by an arbiter in a submission entered into by the executors after arrestment in their hands, and a multiplepoinding raised by creditors of certain legatees of the deceased. 3. Payment of legacies, by an acting executor without any special warrant from the other executors, but which were not interpelled, held a proper item of discharge in a question with creditors subsequently arresting.

The late James Mores, tenant in Upper Wyndings, on the estate of Fetteresso, by his latter will, appointed his landlord, Mr Duff of Fetteresso, the minister of his parish, and Peter Christian, writer in Stonehaven, his agent, to be executors, directing them, 1st, to pay his widow, during her life, an annuity of £40, and to lay out a capital sum on security to answer it; 2d, to lay out£40, on security, in name of the heir of entail of Fetteresso and the minister of the parish for the time being, the interest being distributable among the poor labourers on that estate; and, 3d, to divide the residue of his property in two halves, payable respectively to the children of his two sisters, Mary and Christian, both now deceased. The executors accepted, and entered on the execution of their office. The funds actually realized by them were not sufficient to yield of annual interest the annuity of £40 to the widow; but trusting, as they said, to recovering in full a debt due to the estate by a person named Bruce, who had married one of the residuary legatees, they for some years went on paying the full amount; Christian, the acting executor, also paid, as alleged, to three other legatees —George Silver, William Silver, and Alexander Stevenson, the sum of £176 towards their shares of the fund, but without any special warrant or authority from the other executors. The interest of the £40 provided to the poor labourers on the estate of Fetteresso was also annually distributed among them. Bruce, however, about three years after the death of Mores, became insolvent, and the executors, seeing that there would be a deficiency to yield an interest equal to the widow's annuity, declined to pay more than the interest of the funds realized. The widow in consequence raised an action in this Court, in which judgment was pronounced, finding her entitled to her full annuity. In this process, a remit had been made to an accountant, who, inter alia, pointed out certain bills, on which Mores had been co-acceptor with two other persons, named Tindal and Stevenson, but which had been wholly retired by him, and suggested that the executors should take steps to recover their shares from these parties. The executors in the present action stated that Christian, one of their number, and who had been Mores's agent, knew that these bills had been accepted by Tindal and Stevenson, for the accommodation of Mores, and that it was on this account that they had raised no action against these parties. In consequence of the suggestion of the accountant, however, they raised an action against Tindal and Stevenson who (six years having, from the delay of the executors, elapsed) pleaded the sexennial prescription, which was sustained by consecutive judgments of the sheriff-substitute and sheriff of Kincardineshire, and a reference being made to their oaths, they deponed that they had signed their names to the bills for accommodation of Mores, and they were assoilzied accordingly. Malcolm, a creditor of certain of the legatees, now used arrestments in the hands of the executors, of the shares due to these legatees, and thereupon instituted this process of multiplepoinding in name of the executors, containing the usual conclusions applied to “the estate and effects which belonged to the said deceased James Mores, so far as the same have been intromitted with or recovered by them.” The executors gave in a condescendence of the fund in medio, founded on an account, in which they took credit for, inter alia, the following payments:

1. The interest of the £40 provided to the poor labourers on the estate of Fetteresso.

2. The payment of £176 to account of the shares of the legatees, George and William Silver, and Stevenson; and,

3. The expenses of the litigation with Tindal and Stevenson, being £29, 0s. 5d.

They further claimed retention—1. Of a sum of £100, as part of George Silver's share, allowed by him to be applied to liquidate the debt due to the estate by Bruce, by a letter from Silver, which, however, was neither holograph nor tested; and,

2. Of the expenses to which they might be found entitled to in this action.

To deduction of all or any of these sums in estimating the amount of the fund in medio, Malcolm objected, and he also contended that the executors were further bound to add thereto—

1. The shares of Tindal and Stevenson of the amount of the bills on which they were joint acceptors with Mores, on the ground that these shares had been lost to the estate by the culpable neglect of the executors in not instituting proceedings till the lapse of the six years, whereby these parties were enabled to plead the sexennial prescription; and,

2. A fourth part of the dividend which Bruce's estate would have yielded on the full claim of the executors thereon; this deduction had been allowed by the arbiter in a submission, which the executors had entered into thereanent after the present action was raised; and it was contended, that they were not entitled, after this process was in Court, to submit any matter without consent of the parties having used arrestments.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: *—“Finds, 1 mo, That the trustees, the nominal raisers of this multiplepoinding, are not bound to add to the amount of the fund in medio condescended on by them, the sum of £29, 0s, 5d., being the amount of expenses incurred by them in an unsuccessful litigation with Tindal and Stevenson, in respect that they had good grounds for expect

_________________ Footnote _________________

* “The reasons assigned for the preceding findings, severally, will sufficiently explain the views of the Lord Ordinary. But as the two first may appear not quite consistent with each other, it may be proper to state that the Lord Ordinary has ordered the shares for which Stevenson and Tindal were liable as joint acceptors with the truster, to be added to the fund in medio, because he thinks the omission to sue them for those shares for months and years after the trust-management began, was a gross and palpable neglect, for which it is no apology to say that they were solvent, and that there was a chance of the claim being otherwise compensated, and worse than no apology to say, that one of their number had private knowledge of an equitable, but not legal or available defence, that might have been stated by them against payment. But when (upon the report of the accountant) they did at last raise such a suit, the Lord Ordinary has allowed them to take credit for the expenses of the litigation, though unsuccessful, both because it was instituted on good and respectable advice, and, in the Lord Ordinary's opinion, ought to have issued in their favour, the defence of the sexennial prescription not being available (as he apprehends) to acceptors, when sued in relief by another acceptor who has paid. At the same time, as the point was of difficulty—as the sum at issue was inconsiderable—and as the trustees in the country were entitled to defer to the consecutive judgments of the Sheriff-substitute and principal of the bounds, he thinks they are not to be blamed for not burdening the estate with the serious expenses of a farther litigation in this Court.

“The claimants may ultimately take little or nothing by many of the findings, as it will depend on the result of the competition whether they have any interest to maintain the objections of which they dispose. In that view, it may be doubted whether the greater part might not have been reserved simpliciter. But the Lord Ordinary, finding a separate record closed upon this part of the case, and, having heard a very long debate, could not do otherwise than give judgment.”

ing to succeed in that litigation, and yet appear to have exercised a sound discretion in not taking it by advocation to the Court of Session. 2do, Finds that the said trustees are bound hoc statu, and liable to the effect of subsequent recoveries or decrees of preference in this action, to add to the said fund in medio, the amount of the shares for which Alexander Stevenson and Robert Tindal were liable, with Mores the truster, on certain bills accepted by those parties jointly, and ultimately paid by the trustees, in respect that they improperly neglected to make their claim for such shares effectual, till a pretext was afforded for pleading the sexennial prescription which the Sheriff (though by a very questionable judgment) did ultimately sustain. 3tio, Finds that the trustees are also bound hoc statu, and subject to the effect of the ultimate settlement with William Bruce's estate in the course of this action, to add to the fund in medio the amount of the deduction made from the claim of the trust-estate, on the estate of the said William Bruce, in consequence of an award of the Sheriff-substitute of Kincardineshire, proceeding on a reference or submission to him, entered into by the said trustees, after this action had been for some time in dependence, in respect that the effect of such award is prima facie to diminish the trust-estate and fund in medio, and that it was improper and incompetent for the trustees to go into any such submission during the dependence of this action, without the distinct concurrence of the claimants. 4to, Finds that the said trustees are not bound to add to the fund in medio the interests actually paid by them on the legacy of £40 to the poor of Fetteresso, in respect that such payments were made bona fide, and without interpellation; but that they are not entitled to pay any farther interest without consent of the claimants, except upon a final decree of preference in the course of this action, 5to, Finds that the trustees are not entitled, hoc statu, to deduct from the share of the trust-estate due to George Silver, the sum of £100, which he, by his missive letter (not holograph or tested), directs them to apply in discharge of their claims on the estate of William Bruce, and that the said missive letter cannot compete with the subsequent arrestments used in their hands, by the creditors of the said George Silver, in respect that it is not stamped or probative, either as an assignation or a discharge, and cannot be regarded as being in re mercatoria. 6to, Finds that the trustees are not entitled, hoe statu, to deduct the sum of £176, 7s. 9d. from the shares of the trust-estate provided to George Silver, William Silver, and Alexander Stevenson, to the prejudice of the creditors of those persons afterwards arresting in their hands, nor to take credit in condescending on the fund in medio for the sum now mentioned, in respect that, for any thing that yet appears, that sum was advanced to those parties (if advanced at all) without warrant or authority from the trustees, by Peter Christian, as an individual, and that it must, therefore, be held, in any question with arresting creditors or assignees, with completed intimations, as still attachable in their hands. 7mo, Finds that there is nothing in the form or wording of the summons in this case which can limit the responsibility of the trustees to funds actually recovered, and extant in their hands, in respect that the law will presume every thing to be so recovered and extant, which must or might have been so recovered, but for gross negligence and disregard of ordinary prudence on their part. 8vo, Finds that the trustees are not entitled, hoc statu, to deduct any sum from the fund in medio, on account of any expenses to which they may be found entitled in the issue of this action, in respect that their claim for such expenses as litigants cannot be judged of till the close of the litigation; and their expenses as raisers, though most probably to be charged in the sequel on the fund in medio, cannot, with propriety, be deducted by anticipation in the condescendence of its amount: Appoints the cause to be enrolled, that parties may state whether they require any farther decerniture to give effect to those findings, and in what way they propose to proceed on the merits of the competition.”

The executors reclaimed.

Lord Glenlee.—All I can say is, that it rather appears to me that the Lord Ordinary has extended the diligence prestable from executors farther than it is plain they are liable for. I am not satisfied that it is incumbent on executors necessarily to bring an action against all apparent debtors to the estate, whatever may be their own knowledge of subsisting grounds of defence. If the demand against Tindal and Stevenson had been insisted in before the six years, it would have been referred to the oaths of the executors, and I am inclined to take it that the result would have been the same as it has proved; for we are not to assume that Tindal and Stevenson have deponed falsely. If the executors acted in a way proper for reasonable men to act, it would be very hard to make them liable. It is a material thing with me that so many matters are to be laid together to make out liability. I find a difficulty in judging, and I would recall hoc statu, and remit to the Lord Ordinary to have a state made out.

Lord Justice-Clerk.—I cannot adhere to all these findings. As to the award I have no difficulty, and on that point I am prepared to alter, though I do not object to Lord Glenlee's proposal.

Lord Medwyn.—I have no doubt on that point, and on the second I have as little hesitation in differing from the Lord Ordinary. I can't take it for granted that Tindal and Stevenson deponed to what was not true, and I must hold that there was a private arrangement as deponed to. I can't see that in these circumstances the executors did any thing wrong in regard to it, especially as I don't think that they were in law excluded by the sexennial prescription in a question between co-acceptors. Even, however, if it had been brought within the six years, though the reference must then have been to the oath of the executors themselves, we are bound to hold that they would have deponed as they now state, which is confirmed by the oath of Tindal and Stevenson, and it would be carrying their obligations a great deal too far to hold the executors liable. The only other point is as to the payment of the legacies, and I had some doubt as to it; but when I See, by the report, that the legacies were really paid, all the result that would follow would be that they should find the £40 a-year to the widow. These being the only points, I am ready to decide.

Lord Justice-Clerk.—I entirely concur, and am for altering.

The Court accordingly pronounced this interlocutor:—“Alter the second and third findings of the interlocutor complained, and repel the objections to the condescendence of the fund in medio relative thereto: Alter also the sixth finding of the interlocutor, and repel the relative objection to the condescendence, provided it shall be instructed that the alleged payments were truly made, and remit to the Lord Ordinary to proceed accordingly, reserving all questions of expenses, it being understood that these findings shall not affect the rights of the widow.”

Solicitors: Haic, Hay, and Pringle, W.S.— C. F. Davidson.—Agents.

 SS 13 SS 313 1835

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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0313.html