Scottish Court of Session Decisions

John Costine of Glensone, in the stewartry of Kirkcudbright, died in March, 1833, leaving a testament under which John Muir Lowden of Meikle Cocklick, and William Wightman of Breckonside were appointed executors. They accepted and acted. By the testament, a legacy of £500 was left to Catharine Johnstone, daughter of the deceased Robert Johnstone, surgeon in Osset, and Mrs Isabella Biggar or Johnstone. Catharine Johnstone survived the testator, but died without receiving payment of her legacy. She left several sisters and brothers-german, of whom Miss Jane Johnstone was in minority, the others were in pupilarity. On February 20, 1835, Miss Jane Johnstone was decerned before the Commissariat of Kirkcudbright, executrix-dative qua nearest in kin to her deceased sister Catharine. On March 19, 1835, a petition was presented to the Commissary of Kirkcudbright in name of “Miss Jane Johnstone, daughter of Mrs Isabella Johnstone, and the said Mrs Isabella Johnstone.” It set forth the death of Miss Catharine Johnstone; the pupilarity of all the next of kin, excepting the petitioner, Jane Johnstone, who was in minority, and had no tutors or curators; and that she “was advised to procure herself decerned executrix qua nearest of kin to her said deceased sister. That she accordingly took out an edict of your Lordship, upon the 27th day of January last, which was duly executed, and in which a decree of executry-dative qua nearest in kin was obtained before your Lordship, in her favour, to her said deceased sister, on the 20th day of February last.

“That being only about fifteen years of age, the said Jane Johnstone is not qualified to make up inventories of the moveable estate of her said deceased sister, or to make oath thereto, and as the other petitioner, her mother, is willing to act as factrix for her, and to take the office of executor, upon being authorized by your Lordship, the present application is rendered necessary.”

The petition prayed the Commissary “to authorize the said Mrs Isabella Johnstone to be factrix for the said Jane Johnstone, and to give up inventories, and to confirm, in her own name, as factrix for her, upon her finding caution to make the sum confirmed forthcoming to the said Jane Johnstone, and all concerned, in ordinary form.”

On 28th March, 1835, the Commissary gave this deliverance on the petition, “authorizes as craved.”

A testament-dative and inventory was then prepared, which bore to be “made and given up by Mrs Isabella Johnstone, as factrix for her daughter, Jane Johnstone (who is in minority and without tutors and curators), executrix-dative, qua nearest of kin, decerned and admitted to the said umquhile Catharine Johnstone, her sister (after due citation by public edict of all parties having, or pretending to have interest, and none compearing to object), conform to decree-dative of the Commissary-depute of the Commissariat of Kirkcudbright, dated the 20th day of February, 1835, which Mrs Isabella Johnstone was, by the said Commissary-depute of the said Commissariat, on the 28th day of March, 1835, authorized to be factrix for the said Jane Johnstone, executrix foresaid, and ordained to give up inventories of the said umquhile Catharine Johnstone's effects, find caution, and confirm in her own name, as factrix foresaid, in common form.”

The inventory contained the legacy left by John Costine to Catharine Johnstone, and set forth that the said Mrs Isabella Johnstone had given up the inventory on oath. The commissary thereon pronounced this deliverance, on 5th May, 1835:—“Ratifies, approves, and confirms this present inventory and testament-dative before written, together with the factrix for the executrix therein constituted, in so far as the same is justly and truly made and given up, and no otherwise; and David Mitchell, solicitor, supreme courts, Edinburgh, is become cautioner for the said factrix, that the amount of the said inventory shall be made free, safe, and furthcoming to all persons concerned, and having interest therein, as accords of law. And therefore, by these presents, commits full power to the said factrix for the said executrix-dative, to meddle and intromit with the goods, gear, debts, sums of money, and others, given up and contained in the foregoing testament-dative and inventory, and, if need be, to call and pursue therefor, to uplift and receive the same, grant discharges thereof, and, generally, every other thing thereanent to do that to the office of executrix-dative, qua nearest of kin, is known to belong; providing always just count and reckoning be made by the said factrix, when and where the same shall be legally called and required.”

Miss Jane Johnstone afterwards chose curators for herself, and, along with her mother, and her curators, called on Costine's executors to pay to her the legacy which was contained in the confirmed testament. The executors objected that no valid title had been made up, to the legacy, and that therefore they were not in safety to pay. An action was raised against them by Miss Jane Johnstone, as “sister and executrix dative qua nearest in kin, decerned and confirmed to the deceased Catharine Johnstone, sometime residing at Hardgate of Urr, conform to confirmed testament in favour of Mrs Isabella Biggar or Johnstone, then residing at Bonnington Lodge, near Edinburgh, mother of and factrix for the said Miss Jane Johnstone, expede before the Commissary of the commissariat of Kirkcudbright, upon the 5th day of May, 1835 years, with consent of the said Mrs Isabella Biggar or Johnstone, now Mitchell, spouse of David Mitchell, solicitor, Supreme Courts, Edinburgh, as factrix foresaid, and the said David Mitchell, her husband, for his interest; and also with consent of the said David Mitchell, and John Maben, accountant in Edinburgh, as curators chosen by the said Miss Jane Johnstone, and as such, confirmed and appointed by the Lord Moncreiff, Ordinary,” &c. The action concluded for payment of the legacy, with legal interest, from 9th July, 1834, being a period at which other legacies had been paid, and when, apparently, the pursuer's would also have been paid if no objection had been made to her title.

The defenders pleaded, as their second and third defences, that the pursuer had not been confirmed executrix, and that she had not a valid title to grant a discharge. More particularly they pleaded, 1st, Even if it were competent to grant confirmation to a party as factrix for the person decerned executor-dative, still such confirmation in this case was inept, because Mrs Isabella Johnstone, now Mitchell, was never appointed factrix. The sentence of confirmation designed her as factrix, but no appointment of her, as such, was ever made by the commissary or any other judge. 2d, Miss Jane Johnstone had right only to a share of the legacy, along with her brothers and sisters. The office of executor was, therefore, a trust for them, except to the extent of her single share; and as she was a minor, and incapable of acting discreetly for herself, it was irregular to decern her executrix, which appointed her to be a trustee for others; and, in general, it was incompetent, and contrary to the practice of Scotland, to decern any pupil or minor to the office of executor, which was a trust-office. 3d, But if it were competent to decern her executrix, the sentence of confirmation ought also to have been pronounced in her favour. Wherever there was an executor, whether named by the testament of the deceased, or given by the decree of the commissary, it was incompetent to pronounce sentence of confirmation in favour of any other party. The minor, Miss Jane Johnstone, being beyond pupilarity, had a persona standi, and ought to have been confirmed, if she could be duly decerned executrix. And in regard to her administration of the effects confirmed, she could have got curators immediately appointed, who would have authorized and protected her just as they would do in regard to any other estate in which she had an interest. 4th, The defenders would derive no protection from the caution found by the factrix, because if she was not duly confirmed, the cautioners were not bound. 5th, By the subsequent marriage of the factrix, her office fell, and no party now remained who was entitled to uplift and discharge the legacy as duly confirmed.

In support of these pleas, the defenders alleged that the practice of the commissariat of Kirkcudbright was at variance with that of Edinburgh.

The pursuer answered, 1st, It was within her powers, as a minor, past pupilarity, to name a factrix, and it was evidently for her interest to do so. The petition by her to the commissary, and the relative procedure, amounted to an actual nomination of her mother as factrix, ratified by the Court. If it was competent, therefore, to grant confirmation to a factrix, the pursuer's mother was entitled to be confirmed. 2d, It was contrary to the universal and immemorial practice of Scotland to maintain that no person under the age of twenty-one years could competently be decerned executor. The pursuer possessed a persona standi, and was competently decerned executor qua next of kin. 3d. It is the general practice throughout Scotland, to decern orphan pupils or minors, to be executors qua next of kin; and, thereafter, as they can not manage affairs, the commissary gives sentence of confirmation in favour of a factor for the minor or pupil, for which factor caution is always found at his appointment. This is a most expedient practice; and it is regular and competent, because it is just a sentence authorizing a party, on caution, to administer the executry-estate, for the minor executor, who could not act for himself. 4th. The defenders were in safety to pay, because the factrix had found caution to make the sum confirmed, forthcoming to all concerned. 5th. The pursuer being ready to concur with her mother in granting the discharge, the defenders would be perfectly safe; especially as it was competent for any constituent to continue a factory in favour of a woman after marriage, if the constituent chose to do so; and any discharge by the constituent and factor jointly was unobjectionable.

The Lord Ordinary, “before answer, remitted to the Commissary-clerk of Edinburgh, to report how far the proceedings, in relation to the confirmation of Mrs Isabella Johnstone, now Mitchell, as factrix for her daughter, have been conformable to the usage of the Commissaries in cases where the object was to give a title by confirmation, not to Mrs Mitchell personally, but to her daughter, a pupil, ¹ for whom it was meant that her mother should act.” ^*

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¹ Should be, minor.

* “ Note.—The objections are, 1st, That there being no separate appointment, either by the minor or by any court, of Mrs Mitchell as factrix, the Commissary could not make such an appointment.

“2d, That, de facto, the Commissary did not appoint her factrix, the mere designation of her as such in the decree of confirmation, which is all that appears as yet, not being an effectual appointment.

“3d, That even though she had been effectually appointed, the confirmation should not have been to her, but to her daughter.

“The Lord Ordinary wishes to know the usage on such points, if there be any.”

The Commissary-clerk reported, that “When a pupil or minor is nearest of kin to a person deceased, it has been the usage of the Commissaries of Edinburgh, upon application, to appoint a factor for the pupil, upon finding sufficient caution to confirm the moveable estate of the defunct in his, the factor's name, for the use and behoof of all concerned; and, on obtaining a decerniture, on the edict of the deceased, as executor-dative qua factor, the testament-dative is expede in his favour, conform to the decerniture.” The Commissary-clerk also quoted three cases, two of which occurred in 1755, and one in 1832, in illustration of the rule of practice that “the factor was appointed by the Commissaries on an application for that effect, a regular deliverance given by them, and, on caution being found, an act and factory extracted, and produced when the edict was moved for decerniture.” The Commissary-clerk farther reported, that the procedure in the Commissariat of Kirkcudbright differed from that of Edinburgh, “in so far as the pupil, Jane Johnstone, was decerned executrix qua nearest of kin to said Catherine Johnstone, her sister, and that Mrs Isabella Johnstone, her mother, was afterwards appointed her factrix, in place of the factrix for the pupil being appointed by the Court, caution found, and an act and factory extracted previous to the edict being moved for decerniture, and the factrix decerned executor-dative qua factrix, for behoof of all concerned, conform to her act of factory.” In all the cases quoted in the report, the next of kin were pupils.

The pursuer now lodged a minute, offering to apply, with consent of her mother and her curators, to the Commissary of Kirkcudbright, to have the appointment of her mother, as factrix, recalled, and to authorize confirmation anew to be expede in name of the pursuer as executrix decerned, with consent of her curators, and in name of the curators themselves, new caution being found for her as executrix, and for her curators; and the Lord Ordinary was accordingly craved to pronounce decree in name of the pursuer, as executrix decerned, providing that confirmation, to the above effect, should be produced before extract. And as the libel set forth the pursuer in the character of “executrix-dative, qua nearest in kin, decerned and confirmed to the deceased Catharine Johnstone,” she contended that such decree was consistent with the structure of the summons.

The defenders, besides objecting that there was an incongruity between the decree craved, and the terms of the summons, pleaded that the proposed recal of the sentence confirming the pursuer's mother as her factrix, and pronouncing a new sentence of confirmation in favour of the pursuer and her curators, was irregular and incompetent.

The Lord Ordinary pronounced this interlocutor:—“Finds, that the title on which the action is raised is insufficient, therefore sustains the second and third defences, dismisses the action and decerns, reserving to the pursuer, Jane Johnstone, to institute a new action upon a different title; finds the defenders entitled to expenses.” ^*

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* “ Note.—The summons proceeds on the averment that the pursuer is the ‘executrix’ of her deceased sister, and it is on this title that the action is brought. But, 1st, The confirmation is not given to her but to her mother, as her factrix. 2d, The mother was appointed factrix irregularly.

“The pursuer, Jane Johnstone, has proposed to get the better of these objections by offering to obtain a proper confirmation to herself before extract. But, 1st, This would not fit the summons, which concludes for payment to the present pursuers. 2d, It is doubtful whether she could confirm for the whole debt on finding caution to account to the other heirs, she being a minor, and so not qualified to act as their implied trustee. It is possible that these obstacles may not be insurmountable, but the case is not of that simple kind in which the Court sometimes pronounced decree, subject to a confirmation before extract.”

The pursuer reclaimed.