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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cameron (AP) v MacIntrye Gibson & Anor [2006] ScotCS CSIH_53 (09 November 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_53.html Cite as: [2006] ScotCS CSIH_53, [2006] CSIH 53 |
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord PresidentLord MacfadyenLord Kingarth |
[2006] CSIH 53A1952/02 OPINION OF THE COURT
(NO. 2) delivered by THE LORD PRESIDENT in causa SHEILA CAMERON (AP) AS EXECUTIVE NOMINATE OF
THE LATE ALEXANDER CAMERON FORMERLY KNOWN AS ALEXANDER CAMERON
MACINTRYE Pursuer and Reclaimer; against IAIN MACINTRYE GIBSON and
ANOTHER Defenders and Respondents: _______ |
J.H.S. Scott;
J.J. Mitchell, Q.C.; Morton
Fraser (Defenders and Respondents)
[1] Alexander Cameron,
formerly known as Alexander Cameron MacIntyre ("the deceased"), raised an
action for production and reduction of a decree of the
[2] The
deceased and Dugald MacIntyre were brothers by birth but, by virtue of the
adoption order, the deceased had no claim to Dugald MacIntyre's
estate. The persons who, standing that
order, were Dugald MacIntyre's successors on intestacy were, we
understand, remoter relatives of Dugald MacIntyre.
[3] After
sundry procedure, including a procedure roll discussion and a reclaiming
motion, decree de
[4] Mr Mitchell
for the defender submitted that in the circumstances of this case the executor
dative could have had no knowledge that the deceased had a good claim qua "brother" unless and until decree of
reduction was granted. Until that event,
his duties as administrator were to the remoter beneficiaries. It was plain that a contradictor was required
before the difficult and novel issue raised by this action could properly be
resolved. The Lord Advocate had not
entered appearance. The executor dative,
having been as such properly called as a defender and having defended the
action reasonably and in good faith, was entitled to expenses out of the
estate. Reference was made to Watson v Watson Trustees (1875) 2R 344 and Barrie v Barrie's Trustees 1933
SC 132, especially per Lord Justice-Clerk Alness at pages 138‑9. Certain passages in McLaren on Wills and Succession and in McLaren on Expenses had there been disapproved. In any event the executor dative should not
be found liable as an individual as well as not being found entitled to his own
expenses out of the estate.
[5] The
general rule is that expenses follow success.
The pursuer and reclaimer has in this litigation been successful and, if
the general rule is to be applied, should obtain her expenses and, in
principle, should not have the value of the intestate estate to which she is
consequentially entitled diminished by it being charged with the expenses of
her opponent. The general rule is
subject to certain exceptions where trusts are concerned. One of these may be where, as in Barrie v Barrie's Trustee, the trustee has entered the process to defend a
testator's settlement (challenged in that case by a claim that the testator was
not at the relevant time of sound disposing mind); in such circumstances the court held, by a
majority, that there was no general rule as to expenses, the matter being
wholly one of circumstances. Similarly,
in Watson's Trustees v Watson it was held that, where trustees
in good faith had entered into a process to defend the deed which they had the
responsibility of administering, they were, as a general rule, entitled to
their expenses.
[6] In
the present case there is no deed or settlement to defend, the deceased having
died intestate and the executor dative being required to administer the estate
in accordance with the general law.
Moreover, if one addresses the matter more widely, it can be said that
the present litigation was truly a competition between the person who, if the
adoption order was reduced, was entitled to the intestate estate and those who
were entitled to it if the order was not reduced. The proposition in McLaren on Expenses criticised by Lord Justice-Clerk Alness in
[7] While
the distinctions in this field can be somewhat narrow, we are satisfied for the
above reasons that the pursuer and reclaimer is entitled to the expenses of the
action in the Inner House and in the Outer House (insofar as not already dealt
with) and to a finding that the defender and respondent is not entitled to
charge expenses for which he has been found liable, or his own expenses,
against the share of the estate due to the pursuer and reclaimer. We should add, for the avoidance of doubt,
that we were not addressed on any question of charging "watching fees" to the intestate
estate.