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THE




ISCOTTISH LAW REVIEW



AND



SHERIFF COURT REPORTS.



VOL. XXIL— 1906.



WILLIAM HODGE & CO.

GLASGOW: 34-36 NORTH FREDERICK STREET.

EDINBURGH: 8 NORTH BANK STREET.



mxxxxiTi.



^



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PRINTED BY WILUAM HODGB AND COMPANY.



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INDEX.



FAGB

A CoNPucT IN Petitions, - 99

Actions,*' "Puddling 337

Adyocate, R. L. Stbvsnson as an 285

Aliens Act, The 94

Appeals on the Question op Expenses, 191

Appointments, Business Chanqes, <feG., - 36, 66, 96, 126, 157, 190, 222, 253,

280, 304, 335, 368

A Question of Jurisdiction, 127

A Tangle, 71

A Year's Business in the Court of Session, 67

A Year's Business Performed in our Public and Judicial Departments, 229

A Year's Crime and Criminals in Scotland, 160

Building the Law Agent, 223

Burgh Officials of Scotland, The Association of - - - - 279

Cause," "Without Probable 129

Causes, Transference of 48

Commentary on the Executors (Scotland) Act, 1900, . . - i

CoMPANisB Act, 1862, Table A, The 255

Congested Districts Board, The - 306

Correspondence, 97

Court of Session, A Year's Business in the 67

Court of Session Procedure, Reform of 362

Crime and Criminal in Scotland, A Year's 160

Delegation of Statutory Duty, 257

English. Consistorial Law, The 194

Executors (Scotland) Act, 1900, Commentary on the . - . 1

Expensive Witnesses, 259

Glasgow Sheriff Court, Reminiscences of - 290, 316, 340

Incorporated Law Society, The Annual AIeeting of the 305

Incorporated Society of Law Agents in Scotland, .... 334

Jurisdiction, A Question of 127

Law Agent, Building the 228

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vi INDEX.

PAas

Law Agents, Thb Admission op 190

Law Agents in Scotland, Incorporated Society op - - - - 334
Legal and Official Patronage, Twenty Years op - - - - 10, 37
Literature, - - - 16, 49, 74, 106, 140, 173, 204, 233, 295, 323, 345
Lynch Law, 101

Murder Trials, The Plea of Insanity in 164, 198

The Association op Burgh Oppicials op Scotland, - - - - 279

New Statutes Affecting Scotland, 281

Notes prom Edinburgh, - 20, 54, 78, 111, 144, l74, 208, 237, 264, 296, 325, 347
Notes prom London, - 25, 58, 84, 116, 149, 180, 213, 242, 269, 300, 330, 352
Notes op English Cases, - - 30, 63, 89, 122, 154, 185, 217, 246, 274, 356

Obituary, .... 19, 52, 76, 110, 143, 205, 235, 262, 325, 346

Parliament, The Scots 43

" Peddling Actions," 337

Petitions, A Conflict in 99

Pleading for the Poor, 132

Public and Judicial Departments, A Year's Business Performed in our 229

Question op Expenses, Appeals on the - - - - . - 191

Reform op Court op Session Procedure, 362

Registration op Title, 159

Reminiscences op Glasgow Sheriff Court, ... - 290, 316, 340
Road Material, The Right to Take 312 ^:-

Statutes Affecting Scotland, New 281 /s,

Statutory Duty, Delegation of 257 ''^^

R. L. Stevenson as an Advocate, 285 J

Tangle, A ^^ C

The Admission of Law Agents, 190 j-

The Aliens Act, ^^ !l'

The Annual Meeting op the Incorporated Law Society, - - - 305 \X

The Companies Act, 1862, Table A, 255 \

The Congested Districts Board, 306 ]

The English Consistorial Law, - - * 194 v

The Plea op Insanity in Murder Trials, 164, 198 }i

The Right to Take Road Material 312 |-

The Scots Parliament, 43 s.

' si

Title, Registration of - 159 ^^

Transference of Causes, 48 ^

Twenty Years of Legal and Official Patronage, - - - - 10, 37 C»

"Without Probable Cause," 129 ^

Witnesses, Expensive 259 ^



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INDEX.



Vll



LrrBSABT NoncBS.



Browne k Powles' Law and Practice
in Divorce and Matrimonial Causes
(L. D. Powles), . - 16

Macqneen's Law of Husband and Wife
(Wyatt Paine), - - - - 16

Select Documents illustrating Mediaeval
and Modem History (Emu Reich), - 17

Diary for Lawyers for 1906 (Francis A.
Stringer and J. Johnston), - 18

Law Annual, 1006 (R. Geoiirey Ellis
and Max. A. Robertson), • • - 19

A Treatise on Private International
Law (John Westlake and Alfred
Frank Topham), .... 49

Blements of Law considered with
reference to the Principles of General
Jurisprudence (Sir WiUiam Markby ), 61

A Handbook of Commercial Law
(Frederick George Neave), - 52

A Practical Guide to the Death Duties
and to the Preparation of Death
Duty Accounts (Charles Beatty), - 52

The Law of Defamation and Verbal
Injury (F. T. Cooper and D. Oswald
Dykes), 74

A Treatise on Belgian Law (£. Todd), 75

A Digest of Cases decided in the Sheriff
Courts of Scotland prior to 31st
December, 1904 (George Guthrie), - 76

The Annual Digest of all the Reported
Decisions of the Superior Courts
during the year 1905 (John Mews), - 106

^e Law of Compensation (Alfred A.
Hudson), 107

The Law of Torto (J. F. Clark and
W. H. B. LindseU), - - - - 108

A Treatise on Deeds (Robert F. Norton,
R. H. Dun, and Digby L. T. Koe), - 108

The Law and Practice relating to
Letters Patent for Inventions (Thos.
TerreU), 109

Handbook to Stamp Duties (H. S.
Bond and Charles H. Picken), - - 109

The Elements of Criminal Law and
Procedure for the Use of Students
(A M. Wilshere), - - - - 109

The Law of Moneylending, Past and
Present (Joseph Bridges Matthews), 110

Taylor's Law of Evidence (W. E.
Hume-Williams), .... 140

Principles of the Administrative Law of
the United States (F. J. Goodnow), 141

The A B C of Parliamentary Pro-
cedure (William M. Freeman and J.
Carson Abbott), - - - - 142

^jamin on Sale (Walter Charles Alan
Ker and Arthur Reginald Butter-
▼orth), 142



PAGE

Principles of the Law of Real Property
(Joshua Williams and Cyprian
Williams), 173

Principles of the Law of Partnership
(Arthur Underhill), - - - - 174

The Institutes of Justinian (J. B.
Mayle), 174

Goodeve's Modem Law of Real Pro-
perty (Sir H. W. Elphinstone and
F. T. Maw), 204

The King's Coroner (R. Henslowe
Wellington), 204

A Treatise on the Law of Master and
Servant (Charles Manley Smith,
Ernest Manley Smith, A. C. Forster
Bolton, and Osgoode Hall), - - 233

The Trade Marks Act, 1905 (D. M.
Kerly and F. G. Underhay), - - 233

The Principles of the Law of Evidence
(W. M. Best and J. M. Lely), - 234

Elements of Procedure and Evidence
(A. M. Wilshere), - - - - 234

The Spirit of our Laws, - 234

The Law of Charities and Mortmain
(L. S. Bristowe, C. A. Hunt, and
H. G. Burdett), . ... 234

Duty of Trustees as to Investment of
Trust Funds (Arthur Reginald
Rudall), 235

Principles of the English Law of
(Contract and of Agency in its
relation to Contract (Sir William R.
Anson), 295

The Law Agents' Final Examination :
Questions and Answers, - - 323

Powles and Oakley on the Law and
Practice relating to Probate and
Administration (L. D. Powles,
W. M. F. Waterton, and E. Lovell
Mansbridge), 323

The Law relating to the Compulsory
Taking of Limd by Public Om-
panics and Local Authorities (ThoA.
Waghom), 324

The Criminal Appeal Bill. 1906 (Sir
Harry Poland and Herman Cohen), - 324

Elphinstone's Introduction to Convey-
ancing, with an Appendix dealing
with Registered Land (Sir Howard
Warburton Elphinstone, Gilbert
Harrison John Hurst, and Lancelot
Henry Elphinstone), - • • 324

The Handy Book on the Law and
Practice of Joint Stock Companies
(Anthony Pulbrook), - - - 324

Time-Tables on a New and Simplified
Plan (Thomas Reader), ... 345

Banking Law, with Forms (William
Wallace and AUan M*Neil), - - 345

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VIU



INDEX.





OfirnrABT.






PAGE




PAOK


Mr. Jamee Toung,


19


Mr. A. D. Veitch,


- 206


Mr. George Gray,


19


Mr. William A. Brown,


- 206


Mr. John Smith, -


- 20


Mr. James MaoRosty, -


- 206


Mr. John Watt, jnn., -


62


Mr. John Logan, -


- 207


Mr. James Dickie,


63


Mr. R. T. Younger, -


- 207


Mr. Andrew Johnston,


. 63


Mr. Joseph Shaughnessy,


. 235


Mr. John Cranmer,


- 64


Mr. Alexander E. Henderson,


' 235


Mr. James Anderson, -


• 76


Mr. Andrew Burt,


- 236


Mr. Robert Whyte,


- 77


Mr. John Boyle, -


- 237


Mr. William Buchan, -


■ 77


Mr. James A. Welch, -


• 262


Mr. David Johnstone Walker, •


- 78


Mr. James Campbell, -


263


Mr. J. G. Carrie,


78


Mr. James Boyd,


• 263




- 110


Mr. Roderick Scott, -


• 264


Mr. James Henderson,


. Ill


Mr. John Muir, . . ■ -


- 264


Mr. Gray Campbell Eraser, •


. 143


Mr. William Oliver Clazy, -


- 326


Mr. Alexander Pearson,


- 144


Mr. W. 8. Davidson, -


- 325


Mr. Thomas Spark Sinclair-Sparl


L, - 205


Mr. William Taylor Rule, -


- 346


Mr. George Grier,


• 205


Mr. James Fleck,


346



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£



THE

SCOTTISH LAW KEVIEW.



Vol. XXIL JANUARY, 1906. No. 253.



K COMMENTARY ON THE EXECUTORS (SCOTLAND) ACT,
i 1900 (Sections 6 and 7).

5 1. Transmission of Trust Funds (Section 6).

^ Where a person has died in Scotland with trust funds standing
^ in his name in bank, or elsewhere, they are appended to the
inventory of his own estate by his executor as trust funds, but
it does not follow that the confirmation forms a title
for their recovery. It is only specific trust funds under
the Act that do transmit, and bankers and others, before paying
over such funds, should be well advised that the applicant for
payment or transfer has established a good and sufficient title
in his favour for that purpose which warrants an effectual
discharge.

It is enacted (sec. 6 of the Act) that where a sole or last
surviving trustee or executor-nominate hew died with trust
funds standing in his name, his executor-nominate can make up
a title for recovery by simply appending a note of the trust
funds to the inventory of the defunct executor-nominate's own
estate. The Act does not authorise the transmission of any
other kind of trust funds, and it is therefore very limited in its
scope and application, and quite different from the law of
England, by which trusts do transmit.

The office of trustee in Scotland is, and has always been,
personal, and does not descend to heirs (Erskine iii. 9, 38).
But in England trust estate transmits to the representatives of
a trustee at death for realisation and distribution. The Sheriff
Court Act, 1876, sec. 43, enacts that when any confirmation of
personal estate in Scotland contains, or has appended thereto,
a note of funds in England or Ireland, held in trust, the con-
firmation can be seeded in the Probate Courts of England or
Ireland, and have force and effect in respect to such funds there.
To obtain the English or Irish Probate Court seal to the con-
firmation of estate in Scotland, with trust funds, it must bear
m gremdo the words, "with trust estate in England," or
" Ireland," as the case may be.

B



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2 COMMENTARY ON THE EXECUTORS ACT. [Jan.

The Executors (Scotland) Act, 1900, has introduced a new
feature into our law as to the trai^smission of trust estate in
Scotland. Prior to 1900 trust funds in Scotland did not in
any case, or to any extent, transmit to the executors of a
defunct person for recovery, like as the generality of trust
funds in England pass at death; but, as we have said, the
transmission of such funds in Scotland after death under the
Act is special and not general, and is very limited in extent
and degree.

In making up a title to trust funds to be appended to an
inventory for transmission and recovery under the Act, the first
requirement is that the trust funds in question stand in name
of a person who was the sole or last surviving trustee or
executor-nomiuate, and, second, that the person to append the
trust funds i» his executor-nominate.

As the trust funds to be dealt with under the Act mufit be
standing in the name of a sole or last surviving trustee or
executor-nominate, we have first to see and determine how the
trustee here referred to held the office of trustee or executor-
nominate.

It woidd be fallacious to contend that a person became a
trustee when he simply happened to die with trust funds
standing in his name; and it would also be a misnomer to
designate any person by the name of trustee on an estate
when he held no deed of appointment to the office.

The office of trustee with its important rights and privileges
under statutes cannot be appropriated, assumed, or adopted
by any person of his own free will and pleasure, or simply by
depositing a sum of money in bank in his own name as trust
funds for behoof of some person.

No one can exercise the duties and functions of a trustee on
an estate for the administration and investment of funds without
first obtaining special warrant and authority from the Court
to act as such, or under a deed of settlement, deed of assumption,
contract of marriage, or like deed.

The sole or last surviving trustee referred to in sec. 6 is
a testamentary trustee. (See Currie on Executors, p. 221.)

McLaren on Wills, p. 826, states that "an executor in
the general case is only a trustee for the realisation of the
personal estate and its immediate distribution, but if a testator,
while professing only to make the appointment of * executors,'
entrusts to these persons the duty of holding the personal
estate to secure liferent or other limited interests, the executors
are really trustees." {Amslicy 14 B. 209.)

Where a merchant dies with stocks or shares standing in
his name in trust for behoof of his firm, the law of Scotland



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1906.] COMMENTARY ON THE EXECUTORS ACT. 3

does not provide a title for the transmission of such trust
funds. The defunct merchant having died vested in trust
estate, his share and interest therein will form part of his
estate for estate duty, and although such trust funds may
appear appended to the confirmation of his estate, no title or
authority is thereby conferred on the executor for recovery
of such trust funds, as the Act applies only to funds held by a
defunct executor-nominate. The same rule and result follows
where a law agent or factor or others die with sums standing
in bank or elsewhere in their names in trust for behoof of
clients or friends, as such funds do not pass for recovery under
the Act. Bankers and others before paying over such funds
should be legally advised. As a rule, the beneficiaries or
persons entitled to the funds so deposited can give a good
discharge.

The trust funds that pass and transmit for recovery when
appended to the inventory under sec. 6 of the Act should be
clearly identified and described thus —

Note of Teust Funds in Scotland

standing in name of , now deceased, the

last surviving executor-nominate of
appended for recovery, in terms of sec. 6 of the Executors
(Scotland) Act, 1900.

(Narrate items of trust estate.)

The confirmation will then bear on its face the words, " with
trust funds in Scotland," and will then constitute a good title
for recovery.

When a note of the trust funds that do not pass for
recovery, or estate situated abroad, is not appended to the
inventory accompanying the confirmation, an official extract of
the whole inventory, showing all the funds and estate as
therein engrossed, can be got at any time from the commissariat
books for exhibition if required.

The omission by some commissariats to append to confirma-
tions a note of the funds and estate that do not pass under the
confirmation is evidently an intentional omission in order that
the uninitiated in law might not be led to rely on the
confirmation as forming a title for recovery of all estate when
appended.

If the defunct executor-nominate had a beneficial right
in the trust funds, or was competent to dispose of same by
will, estate duty will be payable thereon under the Finance
Act, 1894, sec. 2.

Trust funds of all kinds held by a person at death, although
they should not be embraced within the category df trust funds

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4 COMMENTARY ON THE EXECUTOBS ACT. [Jan

transmitting for recovery under sec. 6 of the Act, are, never-
theless, appended in an inner column in the inventory of the
defunct's estate as trust funds for fiscal piirposes, and to
disclose all estate of every kind held by the defunct.

Trust funds should not be mixed up in an inventory with
the defunct's own estate, but should always be appended to the
inventory and marked " Trust funds," as, according to our law,
such funds cannot be summed up for confirmation.

In many cases it would be very convenient if our law were
assimilated to that of England in regard to the general trans-
mission of trust funds held at death. Where law agents or
factors on an estate have died with trust funds standing in their
names in bank, or where a bank agent holds stocks or shares
deposited with him by customers to cover overdrafts or
advances, or where a partner in a mercantile firm held in his
own name stocks or shares in trust for his company, there is
no transmission after death of such estate as trust funds under
the Act. Unless the holder's title to the stocks and shares is
founded upon and secured under previous assignation or trans-
fer, transmission becomes blocked, as a title is only completed
when transfer has been duly intimated. As there is no provision
in the law of Scotland at common law or under statute for
making up a title to transmit such trust funds to the representa-
tive of the person in whose name they stand at death, or to any
one whomsoever, it becomes a puzzle to find out how such funds
can be realised. Where trustees or executors have died or
where there is any doubt or difficulty in realising an estate,
the Court of Session is always the forum for the appointment
of a judicial factor to administer lapsed trust estates.

Where the funds are ear-marked, a discharge or transfer by
the whole parties having any interest therein may, in most
cases, be accepted as sufficient exoneration ; but where the
funds are not ear-marked they may be included in the inventory
of the defunct holder's personal estate for confirmation, and
the items deducted as debts in the schedule of debts annexed
to the inventory of his estate — the verUas thereof being always
shown to the Inland Revenue. (See Currie, pp. 141 and 172 ;
Alexander, p. 53.)

Where executry estate has been realised and commingled by
the executor with his own estate a mere claim of debt exists
against him or his representatives at the instance of benefi-
ciaries or others interested in the estate.

Bonds and Dispositions in Secxjeity.
As sec. 6 authorises the recovery of trust funds standing in
name of a defunct executor-npminate when they are appended

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1906.] COMMENTARY ON THE EXECUTORS ACT. 5

to the confirmation of his estate by his executor-nominate as
trust funds, it follows, where bonds and dispositions in security
form part of trust funds so appended, that a link to a title
is thereby constituted for the transmission and recovery of such
heritable securities, and that a notarial instrument can be
competently expede to trust funds to attach and carry bonds
and dispositions in security when so appended, and that under
sec. 117 of the Titles to Land Consolidation Act, 1868. But
sec. 6 provides that executors shall not be bound to complete
a title to such funds, and that nothing therein contained shall
prejudice or exclude the right of any other person to complete
a title to such funds by any proceeding otherwise competent.

Another mode of making up a title to a heritable security
is competent under sec. 43 of the Conveyancing Act, 1874,
which enacts that '^ when a sole or last surviving trustee has
died possessed of an estate in land held in truat the heir-at-law
of such trustee may complete a title thereto as trustee in his
room in manner provided by the Titles to Land Consolidation
Act, 1868."

By the interpretation clause of said Act 1874 it is declared
that '^ estate in land shall mean any interest in land, whether
in. fee, liferent, or security, and whether beneficial or in trust,
or any real burden on land." And sec. 30 of said Act 1874
provides that "real burdens upon land may be assigned, con-
veyed, or transferred, and extinguished or restricted, and titles
thereto may be completed as nearly as may be in the same
manner as in the case of heritable securities consituted, or
requiring to be constituted, by infeftment in favour of the
creditor as defined by the Titles to Land Consolidation Act,
1868."

By sec. 7 of the Executors (Scotland) Act, 1900, it is enacted
that where any confirmation has become inoperative by the
death of the executor, no title shall transmit to the representa-
tives of such executor (saving to trust funds under sec. 6),
but any person having a beneficial right to the confirmed estate
standing unuplifted or untransferred can make up a title
thereto by confirmation ad non eaectUa to the original defunct.
A confirmation ad non exectUa embracing a bond and disposition
in security would instruct a good title for its transmission by
notarial instrument.

confiemation ad non bxecuta.

2. The Executors (Scotland) Act, 1900 (Skction 7).

7. " Where any confirmation has become inoperative by the
death or incapacity of all the executors in whose favour it has
been granted, no title to intromit with the estate confirmed t

igi ize y g



6 COMMENTARY ON THE EXECUTORS ACT. [Jan.

therein shall, otherwise than in the circumstances and to the
extent authorised by the preceding section, transmit to the
representatives of any such executors whatever may be the
extent of their beneficial interest therein, but it shall be com-
petent to grant confirmation ad non eaectita to any estate



Online LibraryScotland. Sheriff CourtsThe Scottish law review and Sheriff Court reports, Volume 22 → online text (page 1 of 88)