Scottish Court of Session Decisions

Subject_1Executor
Subject_2Count and Reckoning with Beneficiary.

Facts:

This was an action by James Angus, Aberdeen, against his brother William Angus, executor of his father the deceased James Angus. The summons concluded for £150 as the amount due to him as one of the next-of-kin of his father. The defence was that at a meeting of the family after the father's funeral, when an interim division of his estate was made by the defender as executor, in which division the sum paid to each next-of kin was £85, the pursuer had admitted having recently received from his father an advance of £70, and agreed to sign a receipt for his £85 on receiving a payment of £15. The defender produced the executry accounts, which brought out a further balance of £21, which he stated he had all along been ready and willing to pay to the pursuer. At the proof the pursuer took up the position that the signing of the receipt was a mistake, and that he had not read it over before signature. The Lord Ordinary having assoilzied the defender except as regarded the £21, which he was willing to pay, the pursuer reclaimed In the Inner House he abandoned the contention that the signing of the receipt was a mistake, but maintained that the taking of such a receipt was not a competent way of taking credit for a debt to the estate (assuming it to be such) which the defender could not otherwise have proved but by writ or oath of the pursuer. The defences, he argued, were an admission that the receipt stated what was not true in point of fact.

Their Lordships adhered to the Lord Ordinary's interlocutor, but expressed the opinion that the taking of the receipt in the manner which had been done was irregular and not to be commended. On that ground they refused to the defender the expenses of the proof.