Scottish Court of Session Decisions

This was a note presented by T. A. Molleson, C.A., curator bonis to the late Mrs Pringle Pattison, praying for the sequestration of the deceased's estate, and the appointment of a judicial factor to receive the rents. The circumstances of the case are fully stated in the opinion of the Lord Ordinary.

An interim appointment having been made, the Lord Ordinary on 19th March 1898 sequestrated the estates and appointed Mr Molleson as judicial factor.

Opinion.—“Mrs Pringle Pattison of The Haining died there on the 3rd of this month, leaving heritable and moveable property of considerable value. She was predeceased by her husband, who died on 12th June 1888. Upon his death a petition was presented for the appointment of a curator bonis to her, founded upon two medical certificates which bore that she was of unsound mind and incapable of managing her affairs, or of giving directions for their management, and that she had been in a like state of mind for several years. One of the certificates described her as being in a state of semi-fatuity. The petitioners were Jane and Euphemia Bowers, in the character of first cousins of Mrs Pringle Pattison, and her only or nearest relatives resident in Scotland, and the petition was served upon certain persons who were described as her other nearest relatives. Mr Molleson, C.A., was appointed curator, and remained in the possession and management of the estates until the ward's death.

Immediately upon her death, competing claims were made to the estates. Professor Seth (who is a relative, not of Mrs Pringle Pattison but of her husband) claimed as sole executor and universal disponee under a disposition and settlement by the deceased, dated in January 1875, more than thirteen years before the curator was appointed. The Misses Bowers claimed as two of the next-of-kin and heirs-portioners; and one of them proceeded with her lawyer to the mansion-house, and claimed to take possession of it, and of all the effects therein.

In these circumstances Mr Molleson, who was lawfully in possession, but whose active title had fallen by the death of the ward, sealed up the repositories, and made application to the Court for the sequestration of the estates and appointment of a judicial factor, suggesting that an interim factor should be appointed until the note should be advised. The application set forth that Professor Seth (now Pringle Pattison) concurred in it, and that he approved of Mr Molleson being appointed to the office. But it is now explained at the bar that his concurrence was for the limited purpose of maintaining Mr Molleson in possession until the repositories were opened after the funeral, and that this purpose having been served, his concurrence must be deemed to be withdrawn.

He now asks me to recal the interim appointment and to refuse the note. The next-of-kin and heirs-portioners desire to have the estate sequestrated, and the appointment continued, in view of the competing claims.

The cases discussed before me were the following:— M'Donald, 11 D. 1028; Elliot, 5 D. 1075; Speirs, 5 R. 75; Fraser, 18 D. 264; Lady Hawarden, 23 D. 923; Campbell, 1 Macph. 991, aff. 2 Macph. (H.L), 41; Munro, 11 D. 1202; Calton, 8 Macph. 713; Aikman, 21 D. 1374.

The position of parties as to title is this. Two of the next-of-kin have petitioned the Sheriff of Selkirk to be decerned executor-dative, but no petition has been presented for service as heir. The disponee under

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the will of January 1875 has completed his title to the lands, by recording it in the register of sasines on 9th March. On 14th March one of the next-of-kin signeted and served a summons of reduction of the will of January 1875 (with the infeftment thereon), on the ground that it is not the deed of the deceased. The propinquity of the alleged next-of-kin and heirs-at-law is not admitted by the disponee; but he neither claims those characters himself, nor points out anyone else as entitled to them.

Notwithstanding the infeftment of the disponee, I think I must take it that neither party is in possession. Certainly that is so as regards the moveable estate. And as regards the heritage, mere infeftment is not enough—see the cases of Elliot, 5 p. 1075; Spiers, 5 R. 75. The Court will not appoint a factor in a competition if one of the parties has already obtained possession; but such possession must (in the words of Lord Westbury) ‘be unequivocal and peaceable; that is to say, possession must have been clearly attained before the competition arose’— Campbell, 2 Macph. (H.L.) 45. The peculiarity of this case is, that when the competition arises, the estate is found in the hands of a judicial factor, who, though his active title had lapsed, was in a very real sense continuing the possession of the deceased. In such a case it seems hopeless for either competitor to maintain that he is in possession in the sense above explained.

But even if neither is in possession, the appointment will not be made unless there is really a competition, and a competition depending on something more than bare averments. As Lord Westbury put it in the case of Campbell—‘It may be deduced from the cases, particularly the case of Munro v. Graham, that the Court will not act upon mere allegation.’ And here the disponee under the deed of 1875 says that that accurately describes the case of his opponents.

A very brief examination of the cases of Campbell and of Munro will show what is meant by ‘mere allegation.’ In Campbell's case the success of one claimant depended on proving the illegitimacy of a person who had enjoyed an undivided repute of legitimacy for years. The point was thus put by Lord Westbury—‘Here the case of the appellant rests entirely on the averment that the respondent's father was illegitimate. He has undoubtedly stated a circumstantial case, but it at present rests entirely on allegation. All presumptions and probabilities are in favour of the apparent prior title of the respondent.’ And his Lordship proceeds to show from the uncontested facts that the respondent's father had been recognised as legitimate throughout his life and had been called in several legal proceedings as the heir entitled to succeed, and that he and the respondent had for fifty years made assertions of right inconsistent with the appellant's case. So also in the case of Munro, 11 D. 1202, where two children who had all along been acknowledged as genuine were alleged to be supposititious, the Court in refusing to make the appointment proceeded on the absence of anything in the undisputed facts to give colour to this bare averment, as well as on the silence of the petitioner in circumstances where he ought to have taken action.

Now there is a presumption for sanity, and this case might have been governed by those decisions if the deceased lady had been recognised and treated as a sane person until her death. But she was of unsound mind for the last ten years of her life, and (according to the statements of the medical men) for several years previously. Of course these dates do not carry one back to the date of the deed; and even if they did, a person of unsound mind may succeed in making a perfectly good and valid will. But this mental unsoundness in later life is a salient fact in the case; and without pretending to define how far the presumption for sanity in January 1875 is weakened or displaced by it, I think it does raise the averments of the next-of-kin out of the category of ‘mere allegation.’ Nor can it be left out of view that an action of reduction of the disponee's title has been raised and served, though the averments in it are meagre. It is true that no title has been expede by the pursuer of the reduction; and it would appear from the answers of the Misses Bowers that they do not admit that she is one of the heirs-portioners of the deceased. But having regard to the very short time which has lapsed since the death, I do not think I ought to decide this question on the footing that those respondents do not include among them the heirs and next-of-kin merely because they have not completed their title.

Then it is said that even if the averments are examined on their merits, they disclose no case of equality of rights or equality of legal position; that the strength of the disponee's position under the will of 1875 cannot be brought into comparison with the position of the relatives averring merely that this will, simple and intelligible as it is, is not the deed of the deceased. Lord Fullerton, in the case of Munro, put the question—‘Is it a competition of such a kind as that the parties stand on equal titles?’ But it does not appear to me on the authorities that equality of position is required before a factor will be appointed. If it were there could hardly be such an appointment; for in almost every case the position of one claimant is prima facie better than that of the other. What is really required is a stateable case not founded on mere averment but in harmony with and deriving support from the uncontested facts, and in course of being put in train for decision. I think we have that here.

It will be clearly understood that in deciding for the appointment I do nothing which could possibly affect the ultimate decision on the merits of the competition. Moreover, the appointment, like others of its class, is subject to being recalled on a change of circumstances. Undue delay in prosecuting the action of reduction might, for example, constitute a ground for recal.”