Scottish Court of Session Decisions

In 1884 a mutual general trust-disposition and settlement was executed by Mrs Elizabeth Hutton or Boath, a widow, and her daughter Miss Ann Butchart Boath. The settlement bore that each of the parties disponed her whole estate under certain burdens, declarations, and reservations to the survivor, and the survivor disponed the whole estate belonging to the survivor at the time of her death to trustees for certain purposes thereafter set out. It contained the following clause:—“And we do hereby nominate and appoint the said William Borthwick, William Thom, and David Steele, and the acceptors or acceptor, survivors or survivor of them, to be the sole and only executors or executor of the survivor of us.” It also contained a clause by which the parties reserved to themselves “full power with mutual consent only to alter, innovate, or revoke these presents in whole or in part as we may think proper.”

Mrs Boath died in 1892 survived by Miss Boath.

Miss Boath died in 1901 leaving a trust-disposition and settlement dated 7th July 1899, by which she conveyed her whole estate to certain trustees whom she nominated and appointed to be her executors. She also revoked all settlements and writings of a testamentary nature, and declared this trust-disposition to be effectual as her last will and settlement.

On 6th January 1902 a petition for confirmation as executors-nominate was presented in the Sheriff Court of Forfarshire by Alexander Machardy and others, the executors appointed in Miss Boath's settlement.

A caveat was lodged against this application for David Steele and others, the executors nominated under the mutual settlement.

On 23rd January 1902 the Sheriff-Substitute ( Lee) granted confirmation in favour of the petitioners.

Note.—“Mr M'Nicoll for the objectors refers to a previous deed by Miss Boath, which bears to have been irrevocable by her, and under which his clients are nominated as executors. I cannot consider what the effect of the clause in the earlier deed may be, or whether the objections to the latter deed are well or ill-founded. These are questions which, as they cannot be effectually answered here, cannot be relevantly considered. It is enough for the matter now on hand that the deed on which the petitioners rely until it be reduced gives to them an ex facie good title to administer the late Miss Boath's estate. It is admitted that the petitioners are responsible and trustworthy, and therefore as they must account for their intromissions and remain liable to have their deed set aside their appointment for the immediate management of the estate can in no way prejudice the objectors.”

The executors nominated under the mutual settlement appealed to the Sheriff,

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and on February 21st 1902 lodged a competing petition for confirmation.

The Sheriff ( Johnston) on 5th March 1902 pronounced the following interlocutor:—“Having made avizandum finds that the general trust-disposition and settlement by Mrs Elizabeth Hutton or Boath and Miss Ann Boath, dated 31st December 1884, and registered in the Books of Council and Session 8th April 1892, was a valid mutual settlement of these ladies, and contractual in all its terms, including the nomination of executors to the survivor of them; that therefore it was incompetent for the survivor Miss Ann Boath to supersede such appointment by her trust-disposition and settlement dated 7th July 1899, and registered in the Books of Council and Session 2nd December 1901: Therefore refuses the prayer of the original petition at the instance of Alexander MacHardy, Town-Clerk, Forfar, and others, trustees and executors nominated under the last-mentioned settlement, and grants warrant in terms of the competing petition at the instance of David Steele and others, trustees and executors-nominate of the survivor Miss Ann Boath of the granters of the said first-mentioned settlement: Finds no expenses due to or by either set of competing petitioners, and decerns.”

“ Note.—Mrs Elizabeth Boath and her daughter executed on 31st December 1884 a joint if not a mutual settlement. Mrs Boath died in 1892 leaving Miss Ann Boath the survivor. Miss Boath in 1893 executed a general settlement revoking all previous settlements, which has, I think, no bearing on the present question, because for what it was worth it was superseded by a later settlement.

Miss Boath in 1899 executed a second general settlement.

She died in November 1901.

There is a competition for the office of executors between the executors-nominate to the survivor in the joint or mutual deed of 1884 and those nominated by Miss Boath in her deed of 1899. I am of opinion that the former are to be preferred.

I. It was maintained that both the deed of 1884 and that of 1899 were nominations of executors to Miss Ann Boath, and that I was bound to sustain the nomination last in date (1) because it was the rule in competition to disregard the prior deed; (2) because I could not sustain the nomination of the prior deed without a reduction of the deed last in date; and (3) because to decide between the parties on any other footing involved the question on the merits as to which was the ruling deed to all effects, which it was not competent for me to entertain in a mere application to the commissary jurisdiction of my Court.

In support of these contentions three cases were cited to me, all of which I think are clearly distinguishable and afford no guide. Grahame v. Bannerman, 1 S. 362. But there was not a competition between two sets of executors-nominate, but between executors-nominate and a next-of-kin claiming appointment as executordative. There were two deeds. But the executors-nominate under the one would be bound to give effect to the provisions of the other if they were found obligatory, and its existence formed no objection to their confirmation. Hamilton, 16 R. 192, where the competition was between executors-nominate and a next-of-kin, who alleged that the testamentary deed was reducible, and separatim that the deceased was domiciled in England, but who merely objected to confirmation going out without initiating any counter proceedings; and Cranston, 17 R. 410, where there was no opposition, and the question was merely whether an untested will bearing to be holograph justified confirmation de piano of executors nominated by it. None of these cases appear to me to touch the present question, which is a proper competition between rival nominations.

If the competition involved not merely the question of confirmation, but incidentally the merits of the testamentary dispositions contained in the rival deeds, I cannot see that that is any reason why I should not decide in the competition. I am bound to dispose of the competition, and I cannot do so on any other footing. It is not often that competition for confirmation involves incidentally questions of succession depending on rival deeds, but competing services often do. And if the incidental determination of such questions does not deter from the decision of the case of competing services, I do not think that it should do so in the case of competing confirmations.

II. A very astute argument was submitted to me on behalf of the trustees under the settlement of 1899 to the effect that the so-called mutual deed was really three wills bound up under the same cover; that the mutuality ended with the first two, and that the third, which was the will of the survivor of the granters, was a mere testamentary document without contractual characteristics, and revocable by the survivor like any other will. I do not, however, think that this argument however specious is sound. I think that one is bound to look not merely to the outward form but to the substance, and looking to the substance I think that this joint-settlement is mutual in all its parts, and that the nomination of executors to the survivor is as contractual as any other part. There are a number of indications that this is so. But as specially touching the present question, I would notice that while the dispositive clause in the final disposition runs in the name of the survivor, whichever of the granters that might be, the nomination of executors to the survivor is a joint act—‘And we do hereby nominate and appoint the said,’ &c.

Accordingly, holding as I do that the nomination of executors to the survivor of the granters of 1884 was a matter of contract between them, I do not think that I can avoid preferring these executors to confirmation, because it may follow as a necessary sequence that the settlement under which they act though prior in date, by reason of its mutuality, renders

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the later settlement ultra vires and nugatory.”

The petitioners Alexander MacHardy and others appealed to the First Division, and argued—They were nominated in the last executed deed, and were therefore entitled to the office till a contract could be shown which disabled the deceased from making this nomination. It was the duty of the Sheriff to determine on the face of the deeds who was entitled to the office, and not to go into the question who had the best right to the property when it came to be distributed, which must necessarily be done if the effect of the first deed was to be considered— Martin v. Ferguson's Trustees, February 16, 1892, 19 R. 474, 29 S.L.R. 401. Any decision as to the effect of part of the prior deed would have a most unfortunate result when the real question at issue between the two sets of beneficiaries came to be determined. They were not represented here, and there were many facts without a knowledge of which the Court could not pronounce a finding as between the two deeds. Accordingly, while the decision of the Court would not be res judicata against the beneficiaries, it would certainly be very inconvenient to pronounce in favour of the executors named in the first deed, while by taking the ordinary course of appointing those last named to carry out their purely administrative functions this inconvenience could be avoided.

Argued for the respondents—There was certainly no universal rule that the latest dated nomination of executors must prevail if the making of the second nomination constituted a manifest breach of trust. Seeing that the executors named in the earlier deed were alive and willing to act, they had adopted the proper course of presenting a competing petition— Hamilton v. Hardie's Executors, December 7, 1888, 16 R. 192, 26 S.L.R. 140. It was clear on the face of the earlier deed that Miss Boath had no power to appoint other executors than those named therein, and accordingly the respondents and not the appellants had an ex facie good title to confirmation. There would be no inconvenience in preferring their claim to administrate, for it would not be res judicata against the beneficiaries, and would in no way affect their rights.

Argument was advanced by both parties as to whether the earlier deed was of a contractual nature or not, but in view of the decision of the Court it is unnecessary to state it.