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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tough v. Tough [1875] ScotLR 12_595 (3 July 1875)
URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0595.html
Cite as: [1875] ScotLR 12_595, [1875] SLR 12_595

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SCOTTISH_SLR_Court_of_Session

Page: 595↓

Court of Session Inner House First Division.

Saturday, July 3. 1875.

[ Lord Craighill, Ordinary.

12 SLR 595

Tough

v.

Tough.

Subject_1Proof before Answer
Subject_2Executor.

Facts:

Where an executor-dative failed to furnish particulars of the executry estate, and opposed the confirmation of the deceased's widow as executrix, the latter held entitled to a proof before answer.

Headnote:

This action was brought by the widow of the late John Tough, ropemaker in Greenock, against his brother William Tough, who had been confirmed as executor-dative of the deceased qua one of his next of kin. The widow raised an action of count reckoning and payment against the executor on the ground that he had understated the amount of the executry estate, and the Lord Ordinary allowed a proof before answer.

The defender reclaimed.

 Judgment:

At advising—

Lord President—The defender's position in this case is a peculiar one. He has been decerned executor-dative on the estate of his deceased brother qua one of his next of kin, and the statement furnished by him of the funds in his hands shows the amount of that estate to be £1,025, 16s. 10d. He admits that the deceased's widow, the pursuer of this action, is entitled to the half of this sum, but opposed her confirmation as executrix, and has not explained his motive for doing so. He is one of several next of kin, and has thus excluded the widow; he has not shown how the inventory of the estate is made up, which the pursuer alleges is incorrect and understated in amount. Further, he takes refuge in the plea that the pursuer may take out confirmation ad omissa, and it is also worthy of remark that the debt to the estate is due. by the firm of which the defender is a partner. In all these points, then, the defender stands in an unfavourable view. The proof allowed by the Lord Ordinary is under special reservation; and I do not think that the authorities alluded to for the defender apply to the present case. If the pursuer's averments are proved the defender must be held to be keeping back part of the estate, and for his own benefit. The Lord Ordinary has taken the right course.

Lord Deas—The fact that this proof has been allowed before answer takes away the difficulty. I should require better ground before coming to the conclusion that this defender is entitled to say that the only remedy open to the widow is to confirm executrix ad omissa.

Lords Ardmillan and Mure concurred.

Refuse reclaiming note.

 Counsel:

Pursuer's Counsel— Trayner. Agent— Adam Shiell, S.S.C.

Defender's Counsel— J. C. Smith. Agents— John Wright and Johnston, L.A.

 1875

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URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0595.html