Scottish Court of Session Decisions

Now, if the executrix came forward and said that she had funds in her hands, or that there were funds which would presently be available for the payment of creditors, I think that would be a strong argument to induce the Court to grant recal of a sequestration inconsiderately applied for. But that is not the case here. The petitioner does not say that she is in a position to clear the estate of debts, but she says that she has an action in Court, in which, if she succeeds, the debts will be paid and there will be a surplus. Why that action should not be proceeded with I do not know, for the sequestration is obviously no bar to proceeding with that action. But seeing that the executrix is not in a position to offer payment, I am unable to see any grounds that would justify the withdrawal of this estate from the creditors which would not be applicable to every similar case in which creditors had, in default of payment, sought to recover the amount of their claims by means of this process.

I think there is some analogy between the cases of sequestration of a deceased debtor and confirmation of executor-creditors, and certainly the rights of the body of creditors are substantially the same as those of the individual creditors who confirm to their debts. Now, if this be a sound analogy, it is adverse to the petitioner's claim, for it is quite settled that the confirmation of an executor-creditor is independent of the right of an executor of the general estate whose administration will to the extent of the subjects confirmed be controlled by the co-existence of executor-creditors.

Accordingly I am of opinion that the interlocutor of Lord Kinnear is sound and should be adhered to.

Lord Adam concurred.

Lord Kinnear—I agree. I think with Lord M'Laren that the material point to consider is, that this is a process for the administration and distribution of an estate among the persons interested, and that the only question really in controversy at present is, whether the title to administer should be vested in the official trustee or in the widow of the deceased. I think that is a question of expediency, and that in disposing of it we ought to consider what is the simplest and best method of administration in the interest of all parties interested in the estate. At the same time I think I may say that the consideration which chiefly moved me in the Bill Chamber was that it seemed to me to be perfectly plain from the papers in the case that there was a controversy between the parties which could not he advantageously or satisfactorily determined in the Bill Chamber at all, because the competency of this application depends upon an averment that there was a surplus in the hands of the respondent, and the validity of that averment depended upon the petitioner having taken a sound view of the respondent's rights on the one hand and her own on the other in the money insured in a policy on the life of the deceased.

I could not determine that question, for in the first place I had not the policy before me, and in the next place, because if the parties were at all right in their view of the kind of question that would arise, it might be necessary to ascertain matters of fact. It appeared to me that that was a consideration which might not tell at all so strongly against the petitioner's application in this Court as in the Bill Chamber, because the policy might have been before us, and the petitioner might have had time to put her case into a more distinct shape than it was in the Bill Chamber. But after hearing the arguments of counsel, I have come to be very clearly of opinion that there is no real change in that respect, for we are still without the policy of insurance. Parties are not agreed about its terms, and I cannot say that I think that the questions upon which they would have to join issue if the policy were before us have been quite clearly formulated, or that the parties have made them quite clear to their own minds. At all events, I am by no means persuaded that it could be determined that the executrix has any interest whatever in the insured money without an investigation, which we have not had, and cannot reasonably have here, though I think it is an investigation which may be very conveniently had either in the action or in the course of the sequestration. In the meantime the creditor's proceeding upon an action being brought against him, was to put the estate, which was at that time in his own hands, into neutral custody by applying for sequestration and obtaining the appointment of a trustee. We must assume that the trustee will honestly discharge his duty, and therefore I think there would be no advantage in replacing the estate in the hands of the respondent, and leaving the executrix to recover the balance due to her if there is any such balance as the result of an action. That would not be for her advantage, and if there are other creditors (and there are some though not many) it would not be for theirs.

The Lord President concurred.