Scotland. Commissary Court (Edinburgh) James Geddes Currie.

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can only discharge their duties through their legal guardians.
Where a pupil was nominated along with a number of other
executors, four of whom accepted, and a declinature by
the pupil was produced, the Commissary held that the pupil
was unable personally to accept or decline, and could only do
so through a curator or factor ; but on the ground that
there was a sufficient number of accepting executors to ad-
minister the estate, and that the exclusion of the pupil
would facilitate its administration, while his own interest
was not exposed to any risk, did not insist on the
appointment of a factor, "whose duty it would so obvi-
ously be, on behalf of the pupil, to decline to act," and
authorised confirmation in favour of the other accepting
executors (Beattie, 25th Nov. 1872). And on similar
grounds, where the deceased had nominated his wife and
child, the latter being a pupil, confirmation was author-
ised in favour of the widow (Stewart, 9th Aug. 1880). A



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AS EXECUTOR-NOMINATE. 73

declinature by a minor has been accepted (Moore, 15 th chap. rv.
March 1881).

Where a person who had been appointed executor-nominate Executors
had become insane, it was held competent to issue confirma- curatoiy.
tion in his favour on an inventory given up by his curator
bonis (Lumsdaine, 21st April 1868 ; Pattison, 17th Nov.
1871). In both these cases the person named was the sole
executor, and had a liferent interest in the estate. And
where the executor was also universal legatory, she was
confirmed on the application of her curator bonis (Peterson,
3rd Oct. 1884). And where a sole executor had expede
confirmation, and afterwards became insane, an eik to the
confirmation was expede in the executor's name on the
application of her curator (Mailer, 1st Nov. 1888).

It is no objection to the confirmation of an executor that Execntors
he is resident abroad. Though all the executors are out of *
the country, the oath may be taken by one of them, and
confirmation issued in the usual way. But when all the
executors are abroad, it is usual for them to grant a factory
or power of attorney in favour of some person in this country,
authorising him to give up inventory, make oath thereto,
and expede confirmation in their names. If it is desired
that the factor or attorney should also proceed to realise the
estate, powers to that effect are added. But it is the execu-
tors that are confirmed, and not the factor or attorney
[FoKM 72].

Confirmation has always been issued in favour of the .whole Bxeoutort
surviving executors-nominate of the deceased, unless they reSounSe.**'
renounce or decline to act.^ The declinature may be in the
form of a minute or statement written on the deed, a letter,
or an excerpt from minutes of a meeting at which the declin-
ing executor was present and setting forth the fact of his de-
clinature. Where an executor is unable to write from want of
education or other cause, a declaration made personally to the
^ Balfour's PracHcki, anent Executors.



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74 APPLICATIONS FOR CONFIRMATION

Chap. IV. Clerk of Court has been accepted. Where a trustee and
executor has accepted, but has resigned before confirmation
is applied for, a certified copy of his resignation must be pro-

BMigDa- duced. Resignation as a trustee implies resignation also as
an executor unless where otherwise expressly declared ; ^ and
it is not held to be any bar to the issue of confirmation in
favour of the accepting and continuing ^secutors that the
period within which it is jpxovided by the Statue that such
resignation shaU take effect has not expired. Besignation
tnmnot be revoked though not taking effect till a subse-
quent date.^ What is wanted in all cases is evidence that
the person named has had intimation of his appointment,
and declines to be confirmed. Where four executors were
named and two applied for confirmation, and deponed that
the other two had declined to act, a minute of a meeting at
which all four were present, and at which the applicants had
been authorised to obtain confirmation in their own favour,
was accepted as evidence of declinature (Menzies, 3rd Jan.
1861) ; and an application by three executors for warrant to
issue confirmation in favour of one of them, the other
two declining to accept "in the meantime," was granted,
nothing however being decided or reserved as to any subse-
quent application for confirmation by the non-acceptors, and
no such application was made (Mathison, 2nd April 1867).

Deoiina- Where a relict had obtained decemiture as executrix-dative,
and in giving up the inventory produced a deed naming three
executors, two of whom had declined, and the third was un-
accoimted for, the Commissary refused to authorise confirma-
tion without intimation to the latter, and a declinature
was obtained (Wright, 28th Jan. 1867). Where, however, a
judicial factor has been appointed under a trust-deed, he is
confirmed without being required to produce declinatures, it
being presumed that the Supreme Court has been satisfied

* 30 and 31 Vict c. 97, §§ 18, 10. » Fullarton's Tra. v. James, IGth

Nov. 1896, 23 R. 105.



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AS EXECUTOR-NOMINATE, 75

as to the failure of the trustees before making the appoint- Chap. iv.
ment (March, 28th July 1869). Where a trustee and
executor accepted as trustee, but declined to act as executor,
the declinature was received as sufficient (Baird, 30th Oct
1883). A GwrotoT bonis may decline for his ward (Macara,
17th Dec. 1885). Where one of three executors named
declined, but withdrew his declinature before anything had
been done, he was confirmed along with the others (M*Queen,
22rd April 1890).

Where a person who has been named an executor is, Aooept-
from old age and infirmity, or from mental or bodily deoUn*-
incapacity, unable to act or to grant a declinature, aobta^ed.
medical certificate of such inability must be produced.
Where an executor named has changed his residence, or
gone abroad, and his address cannot be ascertained, authority
may be granted to issue confirmation in favour of the other
executors named by the deceased. But where the absent
executor has an interest in the succession, confirmation may
be authorised only on caution being found to the extent of
such interest (Purvis, 9th July 1863 ; Templeton, 10th
March 1866). Even where the residence of an executor
abroad is known, if it can be shown that the delay necessary
to communicate with him^ in order to ascertain his accept-
ance or declinature, would be injurious to the estate, and
especially if he has no interest, and it is considered probable
that he will decline, and if there is a clear majority without
him, the Sheriff may grant warrant to confirm the others in
this country without waiting for his declinature. But where
there were only two executors named, the Sheriff refused to
confirm one who was in this country without a declinature
from the other, who was in Madeira (Norton, I7th October
1876) [Forms 6,- 7].

In England, and in countries subject to English law, it is Power to
the practice to grant probate to one or more of the executors not re.
named by the deceased, without notice to the others, power *®'^



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76 APPLICATIONS FOR CONFIRMATION

Chap. IV. being reserved to make a like grant to the other executors
when they shall apply for the same; the new grant, if
applied for and issued, being termed a double probate.^
There is no such thing known in Scotland as a double
confirmation ; that is, a second confirmation of the same
estate granted in favour of a different executor while the
first is extant ; and no power to grant such a title has ever
been reserved. A petition was presented by four accepting
executors for warrant to issue confirmation in their favour,
reserving power to two others who had not yet declared
whether or not they would accept, '* to apply for confirma-
tion, and to be conjomed in the executorship" with the
petitioners on their accepting. Intimation of the petition
having been ordered to the non-accepting executors, they
personally accepted service, but did not enter appearance ;
and the Commissary Depute granted warrant to issue con-
firmation " without the reservation prayed for," as not being
in conformity with the invariable practice of the Court.
The petitioners appealed to the Commissary. Counsel for
the petitioners having explained that what was craved was
merely that the non-accepting executors should not be
barred from making application for confirmation afterwards
if they thought fit, the Commissary recalled the interlocutor
appealed against, and granted the prayer of the petition,
on the ground that the reservation seemed of no importance,
as the non-accepting executors would have the right to o/pT^ly
whether it was made or not, and that nothing was decided
as to the competency of granting such an application
(Stevenson, 16th May 1867). No application under this
reservation was ever made.
Bngiiah Where an application for confirmation is made by execu-

execatow. ^^ under an English will who have obtained probate in the
Court of the deceased's domicile, it is the practice to grant
the application without requiring declinatures from any
1 Williams on E^KvXor^ 320.



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AS EXECUTOR-NOMINATE. 77

Others in whose favour the power to make a like grant may chap. iv.
have been reserved, though, of course, the whole executors
named who have not renounced may be confirmed if they
choose to apply. Even where probate has not been obtained,
it is not the practice to insist on declinatures, if it can be
shown that the law of the deceased's domicile would author-
ise the issue bf probate to the executor primo veniente. On
this ground, where probate had been obtained in Australia in
favour of one executor, and the Court had reserved power to
make a like grant to another resident in this country, the
latter applied for and obtained confirmation in this country
in his favour alone (Keillor, 6th Jan. 1883 ; Messer, 30th
May 1890).

In like manner, where a foreign will founded on contains Foreign
an appointment of executors, confirmation as executors-
nominate is granted in their favour, or of such of them as
have obtained or would be entitled to apply for and obtain
probate, or other similar administrative title, in the Courts of
the deceased's domicile. Wills coming from countries where
executors are not required very seldom contain any appoint-
ment of executors, although in some cases it may have been
inserted with the view to the administration of estate in this
country. Where such an appointment does occur, it will be
given effect to ; but where there is no such appointment, the
beneficiaries under the will are regarded here simply as
legatees or disponees, and must obtain decemiture as execu-
tors-dative in whatever beneficial character or designation
may be conferred upon them by the will, before they can
apply for confirmation (Leslie, 27th August 1863 ; Guy,
2nd Feb. 1874). Under a French will, however, where the
testator simply appointed her niece to be " legataire univer-
selle," warrant was granted to issue confirmation in her
favour on a certificate by a French notary that by the law of
France she was entitled to the administration of the estate
without surety or caution, and without being subject to the



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78 APPLICATIONS FOR CONFIRMATION

Chap. IV. supervision of any Court (D'Abbadie, 24th July 1901).
And where the deceased, who died in Edinburgh, domiciled
in Gennany, by his will provided that his wife should have
the sole management of the estate during her widowhood,
and evidence was produced that such an appointment accord-
ing to the law of the domicile would confer upon the widow
the sole administration provided she obtained the consent of
a guardian for the children of the deceased appointed by a
German Court, such consent was obtained, and the widow
was confirmed as executor-nominate (Wagner, 19th May
1886). By the law of France testamentary executors have
no right to act for recovering the funds of the succession,
unless powers to do so have been expressly granted by the
testator. Where such powers have not been granted a
judicial administrator has been appointed by the French
Courts, and afterwards decerned and confirmed as executor-
dative (De la Lastra, 12th July 1889 ; Delondre, 25th
March 1898).
Bxecutor- It is a peculiarity of the law of England, as distinguished
En^i^d. f^^ that of Scotland, that the office of executor transmits to
the executor of a sole executor, or of a last surviving execu-
tor who has obtained probate.^ Executors, therefore, in
proving a deceased's will, become tp«o fojdo executors of all
estates of which the deceased who nominated them was the
sole or last surviving executor. In this way the chain of
executorship may be continued ad injinitwtri^ unless broken
by intestacy or failure to take probate. This rule applies
only to executors-nominate. There are, indeed, no other
executors in England, what we call executors-dative being
known in England only as administrators. Effect has fre-
quently been given to this peculiarity of English law in
granting confirmation to personal estate forming part of an
English succession, where the executors in England have
died after probate without confirming to the Scotch estate.

1 Williams on Executors, 204. * Tristram and Coote, 49-63.



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AS EXECUTOR-NOMINATE. 79

The person who, according to the rule referred to, is entitled Chap. iv.
to continue the executorship has obtained confirmation in
the same manner as if he were an assumed or substitute
executor (Murray, 27th Oct 1852 ; Oddie, etc., 2nd Aug.
1873). And where the deceased died domiciled in Canada,
warrant was granted to issue confirmation ad non eocecwta of
the estate in Scotland in favour of the executor of an
'executor who had died after being confirmed, but before
xiplifting the estate, in terms of the Canadian will, and in
accordance with Canadian law (Bethune, 18th Feb. 1886).
The executors of the last surviving executor were also con-
firmed where the deceased had died domiciled in the Colony
-of Victoria (M'Allan, 27th Oct. 1887).



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CHAPTER V.

APPLICATIONS FOR CONFIRMATION AS EXECUTOR-DATIVE.

Chap. V. In cases of intestate succession confirmation was formerly
Executors- neccssary, not only as an active title to recover the estate,
but to vest the succession in the next of kin. There was
no representation in moveables, unless the succession was con-
firmed. If the next of kin died before confirmation, he lost
his right to the estate in so far as not actually reduced into
possession, and the whole went to those who were next of
kin at the date of confirmation. Thus where two children
survived their father, and the one died leaving issue, before
confirmation, the other claimed the whole estate, and the
issue got nothing.^ But by an Act passed on 19th July
1823, it was enacted that thereafter in all cases of intestate
succession, where any person or persons who, at the period
of the death of the intestate, being next of kin, should die
before confirmation was expede^ the right of such next of kin
should transmit to his or her representatives, so that con-
firmation might and should be granted to such representa-
tives in the same manner as confirmation might have been
granted to such next of kin immediately upon the death of
such intestate.^ The effect of this enactment was held to be
that the beneficial interest in the succession vested in those
who were next of kin at the date of the death, and not, as
previously, in those who were next of kin at the date of the

1 Erskine, 3. 9. 30. « 4 Geo. iv. c. 98, § 1, Appendix

of Statutes v.



8o



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CONFIRMATION AS EXECUTOR-DATIVE, 8i

confirmation.^ It was also decided that its provisions did Ohap. v.
not apply to any next of kin who died before the passing Executow-
of the Act,* but thait it did apply to every next of kin
who died after that date, even though the intestate
whose estate fell to be confirmed had died before it.^ The
oflSce of executor-dative therefore continued to be a beneficial
appointment, to the extent of the executor's interest in the
succession. But whereas formerly the beneficial interest of
the executor-dative in many cases depended not only on his
relationship or propinquity to the deceased, but upon his
having obtained confirmation in virtue thereof, it now
depends on the former alone, and he obtains confirmation
not so much on the ground of kinship as on that of the
beneficial mterest which it confers. Propinquity alone,
apart from interest, may still be admitted as a competent
title.* Where the deceased has left heritage as well as
moveables, and the heir in heritage is also one of the next
of kin, he may be confirmed as executor without being
thereby bound to collate,^ and the other next of kin cannot
prevent his being conjoined with them in the office of
executor if he chooses to apply for it (Dennell, 7th May
1888). It has also been held that, on the death of the
whole next of kin of a person deceased, his nearest surviv-
ing kindred at the time the office is applied for are, in the
absence of competition, entitled to the office of executor, and
that it is no objection to their being decerned that they
have no beneficial interest in the executry estate ® (Warren-
der, 11th Jan. 1884). But that is only when there is no
competition for the office. The recent practice of the

» Mann v. Thomas, 9th Feb. 1830, 1856, 12 D. 312.

8 S. 468 ; Frith v, Buchanan, 3rd * M*Gowan v. M*Kmlay, 4th Dec.

March 1837, 15 S. 729 ; Elder v. 1835, 14 S. 105.

Watson, 2nd July 1859, 21 D. 1122. * Mitchell i?.Macmichan, 13th Jan.

« Qreig v, Malcolm, 5th March 1852, 14 D. 318.

1835, 13 S. 607. « Bones v. Morrison, 2lBt Dec.

» Cunningham v. Farie, 15th Jan. 1866, 5 M. 240.

G



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82 APPLICATIONS FOR CONFIRMATION

Chap. V. Commissary Courts proceeds on a disregard of mere pro-
Executors- pinquity in blood as a title to the office of executor,
whenever it is brought into competition with a person
having a beneficial interest in the succession.^

An appointment as executor-dative is necessary not only
in cases of intestacy but also where all persons who may be
entitled to confirmation as executors-nominate have died or
declined to act or become incapable of acting, or where no
such persons have been appointed. In these circumstances
any person having right to a share of the deceased's personal
estate may apply by petition to the Sheriff for decemiture as
executor-dative,
w^o are In casc of Competition for the office, applicants are pre-
the office, ferrcd in a certain order ; but any one who is directly
entitled to share in the succession may be appointed without
special intimation to other persons having an equal or even
a preferable claim to the offica All applicants having the
same or an equal right in the order of preference, are
entitled to be conjoined; and any number of applicants,
irrespective of the order of preference, may be conjoined of
consent.^
Order of Among the " Orders to be observed in the Confirmation of
" all Testaments," forming part of the Instructions to the
Commissaries, issued in 1666 by the archbishops and
bishops, with the authority of the Supreme Court, are the
following : — '' If there be no nomination or testament made
by the defunct, or if the testament-testamentar shall not be
desired to be confirmed, ye shall confirm the nearest of kin
desirmg to be confirmed, and if the nearest of kin shall not
desire to be confirmed, ye shall confirm such of the creditors
as desire to be confirmed as creditors, they instructing their
debts ; and if neither nearest of kin, executor, or creditor
shall desire to be confirmed, ye shall confirm the legators,

^ MTherson t;. MTherson, Tth Shiress, 25th Oct. 1878, 6 R. 102.
Feb. 1865, 17 D. 358 ; Webster v. « Muir, 3rd Nov. 1876, 4 R. 74.



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AS EXECUTOR-DATIVE, 83

such of them as desire to be confirmed, and instruct that chap. v.
they are l^ators ; and if no person having interest foresaid order of
shall confirm, ye shall confirm your procurator-fiscal, ^^ «"^®"*^
datives always being duly given thereto before ; and if
after the said datives (but before confirmation), any
person having interest shall desire to be surrogat in place
of the procurator-fiscal, ye shall confirm them as executors
surrogate in place of the procurator-fiscal"^ It will be
observed that in this enumeration there is no reference to
the relict ; but previous to the date of these Instructions
the relict had been held entitled to the office of executor-
dative as a creditor in respect of her ^*tw Tdid(B? According
to the older practice, the general disponee, if he was not abo
nominated executor, was not entitled to be decerned executor-
dative if either next of kin, widow, or creditor appeared to
oppose him ; but it was at length decided that he should be
preferred to the office before any person not named by the
deceased, on the ground that those to whom the deceased had
given the only substantial interest in his succession ought
also to have the right of administering if he has not expressly
excluded them.* The order of preference then stood thus —
first, the general disponee ; second, the next of kin ; third,
the widow ; fourth, creditors ; and last of all, special legatees.*
This order is still maintained, though the character or title
in respect of which the office of executor may now be claimed
has been greatly extended, and certain statutory beneficiaries
are held to rank along with or immediately after the next of
kin. General disponees, universal legatories and residuary
l^atees appointed by the testator being now entitled to
confirmation as executors-nominate, only those who have
become vested with these titles hy svxicession require to be Benefici-
decemed executors-dative (pp. 66, 57) [Form 13]. !?^Ton.

1 Acts of Sederunt, 1553 to 1790, Diet. 3818.

p. 95. * Erskine, 3. 9. 32 ; Bell's Com-

* Mor. Diet voce Executor, 3843. merUarieSf ii. 78 (7 ed.).
3 Crawford, 19th Jan. 1766, Mor.



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84 APPUCATIONS FOR CONFIRMATION

Chap. V. The term "next of kin" in questions of intestate sue-
Next of cession does not necessarily mean those who are nearest
in blood to the deceased, but is used to denote those
relations in their order, who, by the conmion law of Scotland,
are entitled to succeed to his personal estate. The order in
which relations succeed to the personal estate of a deceased
person is the following : — Fir^, Children and their descend-
ants in their order. Second, Brothers and sisters of the full
blood (german), that is, by the same father and mother, and
their descendants in their order. Third, Brothers and sisters
of the half blood (consanguinean), that is by the same father,
but by different mothers, and their descendants in their
order. There is in Scotland no succession through the
mother, so that brothers and sisters by the same mother,
but by different fathers (uterine), are not m law kin to each
other at all, and the mother herself can never succeed to her
child as next of kin.^ Fourth, The father. Thus the father
is next of kin to his child only when the child has left no
issue, and no brothers or sisters, german or consanguinean,
or their descendants. Fifth, The brothers and sisters of the
father of the full blood (german), and their descendants in
their order. Sixth, The brothers and sisters of the father of
the half-blood (consanguinean), and their descendants in
their order. Seventh, The grandfather, whom failing, his
collaterals in same order as those of the father^ [Forms
14-25].
Represen- Representatives of the next of kin under the Act of
nell^t'^ 19th July 1823,* are entitled to be confirmed in the
^*"- same order of preference as the next of kin them-

selves. Although the beneficial right conferred by this
Statute was held to vest in the next of kin immediately
on the death of the intestate, so as to be at once
transmissible to his representatives by assignation or

1 Honeyman*8 Trs. v. Donaldson, « M*Laren on Wills, 222-25.

30th Jan. 1900, 2 F. 539. ^ 4 Qeo. iv. c. 98, § 1, App. v.



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AS EXECUTOR-DATIVE. 85

arrestment — the right to confirmation as an active title Ohap. v.
to intromit with the estate is not held to transmit until
after the death of the next of kin. It has been laid



Online LibraryScotland. Commissary Court (Edinburgh) James Geddes CurrieThe confirmation of executors in Scotland according to the practice in the ... → online text (page 8 of 38)