Scottish Court of Session Decisions

Peter Gordon, baker, Lenzie, executor—dative of the deceased Peter Gordon, Condorrat, Dumbartonshire, raised an action in the Sheriff Court at Glasgow against Mrs Annie Stirling or Gordon and others, in which he prayed the Court “to find that the pursuer is, as executor aforesaid, holder of sundry funds of the total value of £78, 4s. 9d., being the whole moveable property of the said deceased Peter Gordon, weaver, which is claimed by the defenders in various conflicting proportions, that he is only liable in once and single payment thereof, and is entitled on payment or consignation to be exonered thereof and to obtain payment of his expenses, and that decree should issue in favour of the party or parties who shall be found to have best right to the fund in medio.”

The pursuer averred—“(Cond. 1) The said Peter Gordon, weaver, died at Condor—rat aforesaid, on 25th September 1893, and the pursuer thereupon entered upon the management of his moveable estate as executor-dative qua next-of-kin, conform to testament-testamentar in his favour, granted by the Sheriff of Stirling, Dumbarton, and Clackmannan, of date 15th November 1893. (Cond. 2) The defenders Charles Stewart, Mrs Kate Gilfillan or Watson or Miller, and Alexander Bulloch, claim to be creditors of the deceased, and the remaining defenders and the said Charles Stewart are the next-of-kin of the said Peter Gordon, weaver, so far as known to the pursuer. The pursuer believes that there are other next-of-kin of the deceased, but, notwithstanding diligent inquiry and correspondence with America and Australia, he has not been able to trace their names and addresses. (Cond 3) The claims of the creditors above named are disputed by certain of the next-of-kin, who claim to be preferred to the fund in medio without deduction of said claims of creditors, and without reference to possible claims by other next-of-kin whose names and addresses are at present unknown. In these circumstances the present action of multiplepoinding has been rendered necessary.”

The defender Mrs Kate Gilfillan or Watson or Miller lodged defences in which she averred that shortly after the deceased's death she made a claim setting forth specifically the indebtedness of the deceased to her, which claim she was now proceeding to constitute in Dumbartonshire.

Page: 356↓

She pleaded, inter alia—“(2) There being no doable distress, nor competition between disputed debts, nor amongst a class claiming as next-of-kin, the action is incompetent, and cannot be resorted to for the purpose of constituting disputed debts, or of distribution amongst next-of-kin.”

On 29th October 1894 the Sheriff-Substitute ( Spens) dismissed the action, and found the defender Mrs Miller entitled to expenses from the real raiser.

“ Note.—The real raiser is the executor of a certain Peter Gordon. He says the whole estate amounts to some £78, and he says there are certain claims by alleged creditors which are disputed by the next-of-kin. Accordingly, he calls these alleged creditors and the next-of-kin in this action, apparently wishing to leave it to the Court to distribute the fund in such proportions as it may think fit. The next-of-kin are entitled to nothing until the debts are paid. The executor is, in my opinion, bound to hold the fund until the debts are settled. The executor is not entitled to fling the whole fund into Court and say some of the next-of-kin dispute some of the creditors' claims, and therefore I leave it to the Court to settle. I am not aware of authority for this course, and therefore I think that the multiplepoinding is, at all events, premature, and I accordingly dismiss it.”

On appeal the Sheriff ( Berry) adhered and found the appellant liable to the defender in expenses.

“ Note.—There is not here either a conflict of claim or a possible conflict. If the debt in respect of which the action has been or is about to be brought by the alleged creditor is a just debt, it undoubtedly takes precedence of any claim on the part of a beneficiary or next-of-kin. The proper contradictor of one claiming as a creditor of the estate is the executor, and it is he that is bound to meet the person so claiming when his claim is made. I agree with the Sheriff-Substitute that this multiplepoinding should be dismissed.”

The pursuer appealed, and argued—The action was competent, because (1) some of the beneficiaries had refused to recognise the claims of the creditors, and refused to allow the pursuer as executor to pay the creditors— Blair's Trustees v. Blair, December 12, 1863, 2 R. 284; and (2) some of the beneficiaries could not be traced, and the executor was thus unable with safety to distribute the estate. The case of M'Rae v. Gray and Others, January 10, 1895, 32 S.L.R. 172, was different from the present, for in the first place the beneficiaries in the case of M'Rae had not refused to give the trustees an extrajudicial discharge; and in the second place, the Parochial Board, who were the creditors, had raised an action against the trustees long before the trustees brought their action of multiplepoinding.

Argued for the defender—The case of M'Rae ruled the present. In the case of Blair's Trustees a personal claim was set up by one of the trustees, which he would neither abandon or sue for in a petitory action. The trustees had therefore in that case no option but to raise the multiplepoinding. Here there was no double distress, and the action was incompetent— Maxwell v. Waddell, May 30, 1894, 21 R. 827; Croket v. Lord Panmure, June 8, 1853, 15 D. 737.

At advising—