Scottish Court of Session Decisions

The narrative which is given in the immediately preceding case, between the same parties, details the proceedings out of which the present action arose. After Viscount Melville, John James Hope Johnstone of Annandale, and Adam Hay, banker in Edinburgh, had been appointed trustees to execute the settlement of Sir Robert Preston, in the room of the trustees named by him, and with the whole powers and privileges of these trustees, they prepared to vest themselves fully with the whole heritage, and also with the whole moveable estate left by Sir Robert, and conveyed by him to his trustees. For that purpose they raised the action of declarator and constitution against Lady Hay, the heir-at-law, mentioned in the preceding report; and as the trust-settlement not only conveyed to the trustees the whole moveable estate wherever situated, but also named them sole intromitters therewith, and secluded the nearest in kin from the office of executor, the trustees applied to Lady Baird Preston, who, prior to their appointment, had been confirmed executrix qua next of kin in Scotland, and had taken out letters of administration in England, and they required her to convey to them the moveable estate so uplifted by her. Lady Baird Preston had paid a considerable number of legacies, &c. and the trustees offered to discharge her, and her cautioners in the English and Scottish Courts, of her intromissions, upon obtaining delivery of the residue of the estate, and of the vouchers of her disbursements. She thereon executed a deed of conveyance to them of the moveable estate in Scotland which she held as executrix qua next of kin. This deed narrated the trust-deed of Sir Robert Preston, the refusal of the trustees to accept, and the nomination of trustees by the Court with consent of Lady Baird Preston and the other parties already mentioned; it then conveyed the whole moveable estate in Scotland to the trustees, surrogating them in her own room and place, but under condition always that they should relieve her of all claims and costs, incurred as executrix, and that every right and interest competent to her under the trust and the deeds of entail should remain entire and unprejudiced. Lady Baird Preston afterwards refused, however, to convey to the trustees the moveable estate to which she had administered in England, and which was very large, being sworn under £180,000. She alleged that as she had found caution in the courts of England, to the extent of £360,000, for the due execution of the office of administratrix, she and her cautioners, Sir John Hay and Miss Preston, could only be safe by obtaining a judicial discharge in the English courts. The trustees, in January, 1836, filed a bill against her, first, in Exchequer, and afterwards in Chancery, which they stated to be done for the sole purpose of passing her accounts judicially, and enabling her and her cautioners to obtain a judicial discharge on conveying the residue of the estate to them. The bill prayed that she should be ordained to produce accounts of her intromissions as administratrix; that the Court should take an account of the estate left by Sir Robert Preston in England, and of Lady Baird Preston's intromissions; and that the residue of the estate, so far as extant, should be paid over to them, for the trust-purposes, on due provision being made for such debts and legacies as might still remain unpaid.

On February 1, 1836, Lady Baird Preston, as administratrix, filed a bill in Chancery against the trustees, praying that an account might be taken under direction of the Court of the moveable estate of Sir Robert Preston, that the same might be applied in a due course of administration, under direction of the Court; that the clear residue should be ascertained and secured for behoof of the parties interested; and that she might be discharged of her office as administratrix.

The trustees alleged that it would embarrass, if not frustrate them, in the execution of the trust, if the whole English funds were thrown into the hands of the Accountant-General in Chancery, and administered under direction of the Court of Chancery, in place of being conveyed to them in terms of the trust-settlement. And on February 25, 1836, they raised an action of declarator and payment against Lady Baird Preston (who was a domiciled Scotswoman), before the Court of Session, narrating the deeds and proceedings in Scotland above detailed, and concluding for declarator that the whole property and effects of Sir Robert Preston of every denomination, and wherever situated, especially all moveable estate and effects, and “in particular, the whole funds and effects of the said deceased Sir Robert Preston, held by the said Dame Anne Campbell Baird Preston, defender, under the foresaid letters of administration granted and issued in her favour by the foresaid prerogative court of the Archbishop of Canterbury, now pertain and belong, and should be vested and transferred to the pursuers, and survivors or survivor of them, as trustees nominated and appointed by our said Lords for executing the settlements of the said deceased Sir Robert Preston, in room and place of the said Sir Coutts Trotter, Edward Marjoribanks, and Sir Edmund Antrobus, but in trust always, for the uses, ends, and purposes specified and contained in the foresaid trust-disposition, deed of settlement, and will, and that the whole rights, powers, faculties, privileges, and immunities, vested in and bestowed by the before recited trust-disposition, deed of settlement, and will, in and upon the persons therein named, are now vested in and bestowed upon the pursuers, as trustees nominated and appointed by our said Lords; and in particular, that the receipt or receipts, discharge or discharges of the pursuers, are good and effectual to all concerned transacting with, purchasing from, and paying to the pursuers, as trustees foresaid, so that the receipts and discharges to be granted by the pursuers to the said defender, on her paying and transferring the foresaid funds and effects, will be a valid and sufficient discharge and exoneration to her of her whole intromissions with the same, so as to relieve her of all claims on the part of the said trust-estate, for or anent her said intromissions with any part of the funds so intromitted with by her, and to be transferred as aforesaid.” The summons then concluded for decree, ordaining the defender to convey the moveable estate there specified, and all other moveable estate which she held, or might hold, as administratrix, and also to deliver over the vouchers of payments made by her as administratrix, “to the end the pursuers may be enabled to exoner and discharge her of her said intromissions.” Sir John Hay and Miss Preston, as cautioners for the defender, were called for their interest. Subsequently to this, Lady Baird Preston amended the bill which she had filed in Chancery, by adding to it a prayer for an injunction to restrain the trustees from proceeding with their action.

Lady Baird Preston lodged defences, in which, besides objecting to the title and powers of the trustees, on the grounds stated in the preceding case, she farther pleaded, 1st, The powers of the trustees, being derived from the judicial appointment of the Court of Session, could not extend beyond the jurisdiction of that Court. The trustees, therefore, had no title to interfere with funds situated in England, which was beyond the jurisdiction of the Scottish Courts; and, besides, the Court had merely appointed the pursuers to be trustees; it did not, and could not, appoint them to be executors of Sir Robert Preston. 2d, Even if the trustees possessed a title to the moveable estate in England, it was only in the English courts that it could be declared and enforced. The law of the domicile of a party deceased might regulate the right of his intestate succession, or construe the import of his written will, wherever the moveables composing the succession were situated; but the title by which these moveables could be uplifted, in each respective country, must be determined by the laws, and in the courts, of that country alone. The defender had obtained a title as administratrix in the courts of England; she had found caution in their courts, and was amenable to their jurisdiction for her execution of the office of administratrix; and if the pursuers were to claim from her the funds to which she had administered in England, their claim must be preferred in an English court, and she was not bound to answer in a Scottish court. ¹—3d, The defender was entitled, on parting with the funds, to obtain a valid discharge. But she was advised by English counsel, that that required to be a judicial discharge; and she averred as matter of fact, that no discharge granted by the pursuers, whether under authority of the Scottish court or not, would be sufficient for her exoneration in an English court; and that she must, for her own safety, seek a discharge under the proceedings now pending in the English Court of Chancery. ¹—4th, Besides alleging that the conclusions of this action, clashed in some degree with those of the preceding case, the defender pleaded, that, under the bills which had been filed in Chancery by the pursuers and herself, and which preceded the institution of this action, parties had joined issue in a competent court, and the present action could not be sustained without an unwarrantable interference with the jurisdiction of that court.

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¹ Kames' Princ. of Eq., 355 to 361; Egerton, November 27, 1812 (F. C.); Craigie, July 12, 1817 (F. C); Milligan, February 9, 1826 (ante, IV., 432; or new ed. 438.)

¹ Rickman and Parry, May 24, 1827 (ante, V., 700; or new ed. 653; Glyn and Co., June 8, 1830 (ante, VIII, 889); Gordon, November 12, 1818 (F. C.); 2 Bankt., 422, § 6.

The pursuers answered, 1st, They were now duly appointed trustees to execute the settlement of Sir Robert Preston, with the whole powers and privileges of the trustees named by him, and in their room. They were, therefore, in right of the trust-conveyance, which expressly embraced his whole moveable estate, whether situated in England or elsewhere, and which expressly debarred his next of kin from intermeddling therewith. Though appointed by the Court of Session (with consent of the defender and others), yet, if their appointment was valid, the extent of their right to the moveable estate of Sir Robert was measured, not by the territorial limits of the jurisdiction of the Court of Session, but by the terms of the trust-settlement alone, and of course reached to moveables in England and everywhere else. If any other construction could be adopted, the will of Sir Robert, in place of being carried into effect, would be in so far set aside. But the defender, without actually reprobating Sir Robert's settlement, could not oppose his plain and express will, and she was bound to aid in carrying it into effect, by conveying the English moveables to the pursuers. She was no doubt entitled to a full discharge, and the pursuers were ready to give it; and they had filed a bill in Chancery in order to have her accounts passed, and to enable her to procure a judicial discharge. But, on receiving this, she was bound to convey the English moveable estate to the pursuers.—2d, The Scottish court was the proper forum for determining whether the pursuers were entitled to have the whole moveable estate of Sir Robert Preston, wherever situated, conveyed to them. He was a domiciled Scotsman, and it belonged to the courts of Scotland to determine who had right to his moveable succession, if he died intestate; or what was the legal import of his will, if he left a settlement. But the present question was just a branch of this last class of questions. If the original trustees had accepted, they would have been entitled to obtain a judgment of the Scottish court, interpreting the import of the settlement in their favour, and finding that they had right to the whole moveables wherever situated; and, as against any defender who was liable to the jurisdiction of the Scottish courts, and who was possessed of part of the moveable estate to which the trustees had right, they would have been entitled to a decree ordaining such party to deliver it up to them. And the pursuers, being in the room of the original trustees, were equally entitled to such a judgment. Upon obtaining it, it might be necessary to carry it to the English courts, and plead it as their title to obtain a decree against the defender there, to the same effect. But if the Scottish court was the competent forum for trying the rights of the parties, that court was bound to give the decree now sought, and it would rest with the pursuers to make it effectual by pleading it in the English courts.—3d, The pursuers were ready to concur in the steps requisite for the defender's obtaining a judicial discharge in England, though they did not admit that that was necessary to her complete exoneration; and they were entitled to object to the English funds being thrown into the hands of the accountant general in Chancery, or distributed under direction of that Court, because that was not necessary to the due discharge of the defender, or the due execution of Sir Robert's will, but was contrary to it, and to the rights of the pursuers under it. 4th, There was no interference with the jurisdiction of the English courts, involved in giving decree in terms of the present libel, if the Scottish Court possessed jurisdiction over the parties, and was the competent forum for determining the question now raised.

The Lord Ordinary reported the cause in cases.