PET: FOR RECALL OF SEQUESTRATION AGNES WATT DICKIE OR RITCHIE v. CHARLES DICKIE
| P145/5/97 | OPINION OF LORD BONOMY in Petition and Answers for Recall of Sequestration of MRS AGNES WATT DICKIE or RITCHIE, Petitioner; against CHARLES DICKIE, Respondent: ________________ |
Petitioner: Holroyd; Anderson Strathern, W.S.
Respondent: MacIver; Bennett & Robertson
7 April 1999
Factual Background
The petitioner and respondent are sister and brother. Their brother James Dickie died intestate on 13 May 1990. The petitioner was appointed executrix-dative on his estate on 7 August 1990. She was confirmed as executrix on 25 September 1990. On 28 October 1994 the petitioner, as executrix-dative, received a cheque in her favour for £13,392.46 from the solicitors acting in the executry of her late brother. That cheque represented the sum including accrued interest due from the estate to the respondent as calculated by the solicitors. The petitioner held the money in a separate bank account and did not make payment to the respondent. The respondent raised an action of count reckoning and payment in the Sheriff Court in Inverness, which action was later transferred to the Sheriff Court in Edinburgh. On 8 November 1996 counsel representing the petitioner consented to decree passing against her for payment of £13,392.46 with interest at 8% per annum from 25 January 1992 until payment and expenses as taxed. Decree for taxed expenses of £3,498.89 was not pronounced until 5 March 1997. The initial decree was extracted on 25 November 1996 and a charge was served on 30 December 1996. On expiry of the days of charge the respondent petitioned the sheriff at Inverness for sequestration of the petitioner and a warrant for service was granted on that petition on 27 January 1997. On 21 February 1997, when the application for sequestration called before the sheriff, the petitioner was neither present nor represented, and the sheriff pronounced decree sequestrating "the estate now belonging or which shall belong to the debtor Agnes Watt Dickie or Ritchie, Advocate, Coille Ghlas, Lower Dell, Nethybridge, Inverness-shire". The Accountant in Bankruptcy was appointed interim trustee. On 17 April 1997 Alan Andrew Nelson was confirmed as permanent trustee on the said sequestrated estate.
The Petitioner's Case
The petitioner lodged the present petition seeking recall of the award of sequestration at the Petition Department on 1 May 1997. The petition is presented under sections 16 and 17 of the Bankruptcy (Scotland) Act 1985 and invokes the court's discretionary power to recall the sequestration if the court considers that appropriate in all the circumstances of the case. The principal ground on which recall of the sequestration is sought is that decree sequestrating her estate ought not to have been pronounced at all, since it proceeded upon a decree against the petitioner as executrix-dative of her late brother, and any diligence ought to have been confined to the estate of her late brother as held by her at the time the decree pronounced was enforced. She maintains accordingly that she was sequestrated on an erroneous basis and that the sequestration ought to be recalled. Alternatively, she maintains that, taking account of all the surrounding circumstances, it is appropriate to recall the sequestration.
The Respondent's Case
The respondent initially opposed the prayer of the petition in principle. However the sequestration resulted in the cautioner under the petitioner's bond of caution as executrix-dative paying all sums due to the respondent. I was advised that payment was made in July 1997. By Minute of Amendment lodged on 8 June 1998 the respondent withdrew his opposition to recall of the sequestration. However, he maintains his opposition to paragraphs (v) and (vi) of the prayer which seek findings against him in respect of the expenses of this petition and the expenses of the sequestration, including those of the interim and permanent trustees. He also maintains his contention that this petition is out of time and should be dismissed on that basis.
When is a Petition "Presented"
The provision of the Bankruptcy (Scotland) Act 1985 governing the timing of such a petition is section 16(4). Where the petition is presented on any of the grounds mentioned in paragraphs (a) - (c) of section 17(1) of that Act, there is no time limit. Paragraphs (a) - (c) contain specific grounds for recall. None is invoked at present in this petition. Where, however, the ground advanced for recall falls within the general discretion of the court as set out in the initial part of section 17(1), as is the case here, there is a time limit requiring the petition to be "presented" to the Court of Session within ten weeks after the date of the award of sequestration. The first issue falling for determination is whether this petition was presented within that time limit. It is agreed that the petition was handed into the Petition Department on the last available day of the ten week period. It is equally agreed that all procedure following thereon, including the interlocutor of the court granting warrant for service, occurred outwith the ten week period. The petitioner contends that a petition is "presented to the Court of Session" when it is handed in or lodged at the appropriate office of the court. The respondent, on the other hand, maintains that a petition is presented to the court when it is placed before a judge for consideration. The respondent's authority was the opinion of the High Court of Justiciary in Tin Fan Lau, Petitioner 1986 S.L.T. 535, which in turn relied on Hume on Crimes, ii 95. The issue in Tin Fan Lau was the interpretation of section 28(2) of the Criminal Procedure (Scotland) Act 1975 dealing with bail applications to a sheriff, which section provided as follows:
"Such application shall be disposed of within 24 hours after its presentation to the sheriff, failing which the accused shall be forthwith liberated."
The court stated their opinion at p.535l as follows:
"Presentation or presentment can only occur when the application has been transmitted to the sheriff so that the sheriff may consider and judge of the application."
The court relied heavily on the passage in Hume dealing with the presentation of a bail petition to a magistrate in circumstances where the office of the clerk might be situated so far from the location of the magistrate that 24 hours might pass before the magistrate could know anything of the application. Hume was explaining the terms of the Act of 1701(c.6) which are very similar to those of section 28(2) of the Act of 1975. The matter was the subject of consideration by the High Court as a Court of Criminal Appeal in H M Advocate v Keegan 1981 S.L.T. (Notes) 35 where Lord Cameron observed that Hume, Alison & Burnett all considered an application for bail was presented only when it was placed before the magistrate or sheriff and was not presented when it was lodged with the clerk. So in relation to bail an application has, since at least the late 18th Century, been regarded as presented only when placed before the appropriate judge.
The petitioner's counsel, on the other hand, drew my attention to two cases in which "presented" has been given a different meaning in civil proceedings. I am persuaded by these authorities that "present" has a different meaning in relation to petition procedure in the Court of Session. In Bain v Allan (1884) 11 R. 650 it was held that a reclaiming note was "presented" when it was lodged with the clerk. That was the interpretation placed upon section 28 of the Court of Session Act 1868 (c.100) which provided that an interlocutor appointing a proof
"shall be final unless within six days from its date the parties, or either of them, shall present a reclaiming note against it to one of the Divisions of the Court."
In 1884 a reclaiming motion required to be "boxed" before it could appear in the Single Bills of a Division. Objection was taken to the reclaiming motion in that case because it had not been boxed within the statutory time limit. In dealing with that objection the Lord President (Inglis) said:
"Although the word 'presented' may in the ordinary case be held to have the meaning of and to be equivalent to both 'lodging in process' and 'boxing to the Court', yet, as the word is used here, I have great doubts whether it was intended to comprehend both acts. The words used are 'shall present a reclaiming note to one of the Divisions of the Court, by whom the case shall be heard summarily'. I do not therefore see how the statute can be held to mean more than that something is to be done which shall have the effect of putting the case in the hands of one Division of the Court. But that is accomplished by the mere act of lodging the paper with the clerk to the process. The case is thus brought to the Division. The principal note is necessarily what is lodged; it is signed by counsel on behalf of the parties. I am not able to say that the lodging of that note, signed by counsel, is not a sufficient compliance with the requirements of the section to which I have referred."
Lords Mure and Shand expressed similar opinions. In Burgh of Millport, Petitioners 1974 S.L.T. (Notes) 23 Lord Keith in the Outer House expressed the view that presentation was achieved by lodging a petition for sequestration at the office of the clerk of court. He expressed the view that that was consistent with common-sense. In Secretary of State for Trade and Industry v Normand 1994 S.L.T. 1249 Lord Sutherland reached a similar view in interpreting the Company Directors Disqualification Act 1986 which by section 7(2) requires any application for a disqualification order to be made within two years of the date upon which the company of which the person is or has been a director became insolvent. In that case a petition was presented within the two year period but the interlocutor granting a first order for service was not pronounced until the two year period had expired. In holding that the application was made when the petition was lodged in the office of the clerk of court, Lord Sutherland said this, at p.1251D-F:
"There is no doubt that in an ordinary action the date of commencement of the action is the date of citation of the defender. In an ordinary action, however, the court is not involved until such time as the summons is lodged for calling. That being so, the action cannot be commenced by some unilateral action on the part of the pursuer where no formal intimation has been made to the defender and where the court has not been involved. The position, however, is different in petition procedure. Under that procedure the petition is lodged in court and then in terms of Rule of Court 195 the case will automatically be put before a Lord Ordinary in order that a first order may be pronounced. From the moment the petition is lodged the rest of the procedure follows automatically. I therefore find myself in complete agreement with Sheriff Principal Ireland (Secretary of State for Trade and Industry v Josolyne 1990 S.L.T. (Sh.Ct.) 48) when he says that the order for service and the service on the respondent are merely events which are consequential on an application which has already been made. Section 7(2) is concerned, not with the convening of a respondent into the process, nor with the commencement of an action as that is understood in ordinary procedure. What section 7(2) is concerned with is an application to the court and it is the date of that application that is relevant. In my opinion, there can be no doubt whatever that under the ordinary meaning of words 'an application to the court' must be the date upon which the petition is lodged in court."
On the basis therefore of authority, common-sense, and the ordinary meaning of words I consider this petition was "presented" when it was lodged in the Petition Department. The petition is accordingly timeously presented for the purpose of seeking recall of the sequestration on a ground which requires presentation within ten weeks of the sequestration.
The Prior Court and Sequestration Proceedings
The principal ground on which the petitioner seeks recall of the sequestration is that there were substantial and procedural irregularities in the sequestration process. The petitioner maintains that the decree on which diligence and ultimately sequestration proceeded was taken against her in a representative capacity as executrix-dative and did not provide a competent basis for sequestration of her personal estate. She seeks to demonstrate that it was essentially because of the actings of the respondent that her personal estate was wrongfully sequestrated. She thus seeks to secure recall of the sequestration and recovery of the expense associated with the inept procedure from the respondent.
The starting point for the petitioner's case is the language of the decree which is the foundation of subsequent diligence. The decree was pronounced, of consent, in an action of accounting at the instance of the respondent against the petitioner. In the instance the petitioner is designed as follows:
"Mrs Agnes Watt Dickie or Ritchie, Advocate, residing at care of The Staff Club, University of Edinburgh, 9/15 Chamber Street, Edinburgh, EH1 1HT, executrix-dative of the late James Dickie, late of Coille Ghlas, Lower Dell, Nethybridge, Inverness-shire by Dative Petition and Confirmation, Defender".
The crave was in the following terms:
"(1)To ordain the Defender to produce a full account of her intromissions as executrix-dative aforesaid with the estate of the late James Dickie and to pay to the Pursuer the sum of THIRTEEN THOUSAND THREE HUNDRED AND NINETY TWO POUNDS AND FORTY SIX PENCE (£13,392.46) Sterling or such other sum as may appear to be the true balance due by her with interest thereon at the rate of 8 per centum per annum from 25 January 1992 until payment; and, in the event of the Defender failing to enter appearance or failing to produce such account, to ordain the Defender to pay to the Pursuer the sum of THIRTEEN THOUSAND THREE HUNDRED AND NINETY TWO POUNDS AND FORTY SIX PENCE (£13,392.46) Sterling with interest as aforesaid.
(2)To grant warrant to arrest on the dependence of the action.
(3)To find the Defender liable in the expenses of the action."
There were averments about the appointment and confirmation of the petitioner as executrix-dative. These are followed by averments that the respondent was entitled to an accounting from "the Defender", i.e. the present petitioner. The material pleas-in-law were in the following terms:
"(2)The Defender being bound to account to the Pursuer for her intromissions, should be ordained to produce an account as craved.
(3)Failing production of an account, Decree should be granted against the Defender in terms of the alternative crave for payment."
In the extract decree the petitioner is designed exactly as in the instance of the action. Following her designation the decree is in the following terms:
"The Sheriff granted decree against the Defender for payment to the Pursuer of the undernoted sums.
Sum decerned for £13,392.46 with interest at 8 per cent a year from 25 January 1992 until payment and expenses against the Defender as the sum may subsequently be taxed."
The charge for payment served on the petitioner included the same designation of her and thereafter charged her in the following terms:
"TO:MRS AGNES WATT DICKIE or RITCHIE
On:8 November 1996, a Decree was granted in the Sheriff Court at Edinburgh for payment of a sum of money in the above action. The Decree was extracted on 25 November 1996.
I, Michael Black, 29 Castle Street, Inverness, Sheriff Officer, by virtue of the Extract Decree, IN HER MAJESTY'S NAME AND AUTHORITY and in the Name and Authority of the Sheriff, charge you to pay the total sum due as set out below (together with any further interest) within 14 days after the date of this charge to: (name and telephone number of solicitors).
If you do not pay this sum within 14 days you are liable to have further action taken against you including the arrestment of your earnings and the Poinding and Sale of Articles belonging to you.
You are also liable to be sequestrated (declared bankrupt).
This Charge is served on you today by me by delivering to you personally."
The sum due was calculated as £18,707.73.
Following the expiry of the days of charge the respondent petitioned the sheriff at Inverness for sequestration of the petitioner. The petitioner was designed in the instance as follows:
"MRS AGNES WATT DICKIE or RITCHIE, Advocate, residing at Coille Ghlas, Lower Dell, Nethybridge, Inverness-shire, RESPONDENT".
The craves were in the following terms:
"(1) To grant warrant to cite the respondent to appear before the Court on such date as shall be specified in the warrant...
(2) To award sequestration of the estate of the Respondent.
(3) To declare that the said estate belongs to the creditors of the respondent.
(4) To appoint the Accountant in Bankruptcy as Interim Trustee.
(5) To make such other and further orders as may seem appropriate to the court.
(6) To find the petitioner entitled to the expenses of this application out of the Respondent's estate."
It is plain from the Statement of Facts in support of the petition that what was sought was sequestration of the present petitioner's estate unqualified in any way for the benefit of her creditors in general. In the course of his submissions counsel for the petitioner placed weight on the form of the Oath by Creditor sworn by the respondent in support of his petition to sequestrate the petitioner. In it the petitioner was designed as she was in the instance of the petition for sequestration without reference to her position as executrix-dative. Counsel suggested that the sheriff who awarded sequestration was thus not fully informed of the circumstances in which the petition came to be presented. Had he been fully informed the sheriff might well not have pronounced the deliverance sequestrating the petitioner. I note, however, that attached to the Oath were the extract decree and an execution of the charge, both documents containing the terms I have quoted above.
On 21 February 1997 the sheriff at Inverness awarded sequestration on the said petition. In his deliverance the petitioner is designed as she was in the instance of the petition. The terms of the deliverance are as follows:
"The Sheriff, having considered the foregoing Petition, together with productions, and being satisfied that:
the petition has been presented in accordance with the Bankruptcy (Scotland) Act 1984, as amended,
proper citation has been made of the debtor,
the requirements of the Bankruptcy (Scotland) Act 1985 relating to apparent insolvency have been fulfilled,
SEQUESTRATES the estate now belonging or which shall belong to the debtor Agnes Watt Dickie or Ritchie, Advocate, Coille Ghlas, Lower Dell, Nethybridge, Inverness-shire before the date of the debtor's discharge and DECLARES the same to belong to the debtor's creditors for the purposes of the said Act."
That deliverance was pronounced on the failure of the petitioner to appear or be represented. She did send a letter from her doctor explaining that she would be at hospital that day. While I was given some information about the circumstances of that attendance, no medical report was presented to me to suggest that there was any reason why the petitioner could not have arranged to be represented at the calling of the petition.
It is plain, from the opening words of section 17(1) of the Bankruptcy (Scotland) Act 1985 and from the way in which that and similar provisions have been interpreted, that the court has a broad discretion to recall a sequestration where the court considers it appropriate so to do, and that substantial or procedural irregularities in the sequestration process may be grounds for recall - see Button v Royal Bank of Scotland plc, Lord Prosser unreported, 22 July 1987, Hodgson v Hodgson's Trustees 1984 S.L.T. 97 and Pert v Bruce 1937 S.L.T. 475. On the strength of these authorities counsel for the petitioner presented his case for recall on two bases. In the first place he submitted that the decree granted against the petitioner and the charge following thereon were against her in her capacity as executrix-dative, or ought to have been taken against her in that capacity, and therefore did not provide a basis on which the petitioner's personal estate could be sequestrated. That was the sort of fundamental irregularity which would on its own justify recall. In the event that I did not accept that submission, he contended that in all the circumstances of the case it was appropriate to recall the sequestration.
Whether Initial Decree Pronounced against Petitioner Personally or Qua Executrix
The first question is whether the founding decree was pronounced against the petitioner in a way which restricted its enforceability. Circumstances in which a decree may be pronounced against a person in a representative capacity so as to restrict liability to the assets held in that capacity were considered recently by Lord Hamilton in Dyer v Craiglaw Developments Ltd and Others, unreported, 29 October 1998. The issue for Lord Hamilton was the interpretation of an interlocutor decerning against a liquidator "as Liquidator" for payment of the expenses of an appeal and a hearing on the Single Bills. Lord Hamilton concluded that an interlocutor qualifying liability in that way meant that the liability in expenses was restricted to the limit of the assets of the company in liquidation. Counsel for the petitioner submitted that this case did not advance matters since it was a case relating to expenses. In explaining what the "general rule" was, namely that the liquidator litigating exposes himself to personal liability, Lord Hamilton explained that that general rule was "illustrative of the more general principle that persons litigating in a representative capacity personally warrant the sufficiency of the funds in their hands" (Sinclair v The Thurso Pavement Syndicate Ltd (1903) 11 S.L.T. 364). Although that case relates to expenses, as do others referred to in Lord Hamilton's Opinion such as Liquidator of the Consolidated Copper Co of Canada v Peddie &c (1877) 5 R. 393 and Liquidator of Nairn Public Hall Co 1946 S.C. 395, Lord Hamilton did not appear to regard the principle as confined to expenses, albeit he was dealing with an issue of expenses, and in relation to the position of a liquidator founded, for the general rule that a liquidator who litigates exposes himself to personal liability but is, if found personally liable, entitled to relief out of the company's assets, on Smith v Lord Advocate 1978 S.C. 259. There the Lord President (Emslie) at pp.272 to 273 said this:
"... I wish to make it plain that I have not forgotten that a liquidator who carries on the business of a company, or who enters into contracts, or who litigates, exposes himself to personal liability. Such personal liability as he may incur is not, in my judgment, at all inconsistent with the view that in engaging employees to complete a company's contracts he is engaging them for and on behalf of the company itself. The reason for that personal liability is, as the cases on expenses show (i.e., those cited by counsel for the liquidator), that he has the control, and that in contracting or litigating on behalf of the company he warrants that the company's resources are sufficient for the carrying out of his decision. If he is found personally liable he is, of course, entitled to relief out of the company's assets."
So at least in relation to a liquidator the fact that he litigates in a representative capacity is not sufficient to limit his liability in general, not just in relation to expenses, to the funds and assets held by him in that capacity.
Before Lord Hamilton, and before me, reference was made to Craig v Hogg (1896) 24 R. 6. That case concerned an interlocutor against a judicial factor ordaining him in the following terms:
"as judicial factor of Archibald Rodan Hogg, to make payment to the pursuer of £159 6s 8d, with interest... finds the defender, as judicial factor foresaid, liable in the expenses to the pursuer."
A bench of seven judges considered the issue whether or not the words "as judicial factor" in the award of expenses had the effect of limiting the liability of the judicial factor to the factorial funds. By a majority of five to two they decided that the words had that effect. While a great deal is said in the opinions in that case about the rights and wrongs of imputing personal liability to one acting as a judicial factor, I can find nothing in these opinions to vouch the proposition that a decree taken against a "defender" who is said to have a representative capacity is effective only against the estate represented. The whole tenor of the opinions is that the award made against the judicial factor, and indeed any other representative, is effectively limited to the estate by qualifying the finding as being made against him "as judicial factor" or "qua judicial factor". If the petitioner's contentions were correct the reference in the interlocutor in Dyer to the appellant being found liable "as a Liquidator" would be unnecessary since he was described in the instance as liquidator. In Dyer Lord Hamilton at p.3, after noting the general principle that persons litigating in a representative capacity personally warrant the sufficiency of the funds in their hands, went on to say this:
"Disposal of expenses to that effect is not, however, inevitable. The Court, while finding a liquidator liable, may direct that the expenses should not form a charge against the funds of the company in liquidation... On the other hand, the Court may limit the enforcement of an award of expenses to the funds which the unsuccessful litigant holds in his representative capacity."
In my opinion before any decree is limited in effect to funds held in a representative capacity it must clearly state in terms that the award is made against the defender "as" or "qua" that representative. The fact that a defender is described as holding a representative capacity in the instance and in averments relating thereto is not sufficient to limit the liability expressed in a decree which is otherwise unqualified. That is plain from the decision in Kilmarnock Theatre Co v Buchanan 1911 S.C. 607. I accordingly consider that the decree in this case, expressed as it was, provided a proper foundation for the petition to sequestrate the personal estate of the petitioner.
Whether Decree Ought to Have Been Taken Against Petitioner Qua Executrix
The petitioner also contends that, even if the decree is interpreted in the way I have interpreted it, it was erroneously pronounced without qualification. Counsel submitted that an executrix-dative is personally liable only where personal liability is brought home to her. There was no basis for importing personal liability in this case, and the decree should accordingly have been pronounced against the petitioner as executrix-dative. No submission was made for the respondent that such a determination, being the equivalent of reduction of the decree founding the sequestration proceedings, was outwith the competence of the court considering a petition for recall of sequestration. That is hardly surprising in the light of the exercise of the power in Pert v Bruce. I accordingly proceed on the basis that my power to recall a sequestration extends to such circumstances.
When considering this argument it is helpful to have clearly in mind what the respondent sought to do when raising the action of accounting against the petitioner. The sum which on the face of it was due to him from his late brother's estate had been calculated by the solicitors acting in the executry. At no stage has the petitioner had a statable or arguable basis on which to dispute the entitlement of the respondent to a one-third share of the estate, or the calculation of the sum due which was sent to her as executrix-dative. The petitioner acknowledged delay in payment, and averred at page 9 of the Record that any delays in making payment were made in good faith. The high point of the petitioner's case for not making payment was suspicion that the respondent had intromitted with the deceased's estate in some way that might entitle her not to pay the sum which had been calculated as due. However, there are no averments in the present petition seeking to justify the failure to pay. So it comes to this that the petitioner had no grounds for not immediately accounting for the sum so calculated and sent to her for payment. No issue was raised that there might be some limit on the liability of the petitioner or that her obligation to pay the respondent was limited in some way. It was accepted on her behalf before the sheriff in Edinburgh that she was bound to pay the sum sought. In these circumstances there was not, in my opinion, any ground for contending that the decree pronounced against her should be qualified in any way. There was no reason to think that the distinction between her as an individual and as executrix-dative was in any way relevant to her obligation to pay over the sum given to her for that purpose. The basic undisputed facts in this case do not provide a basis for asserting that the decree pronounced should have been qualified as pronounced qua executrix-dative. An example of a decree being taken against a defaulting executrix for payment of a beneficiary's share of the estate and that decree being regarded as a proper basis for diligence against her personal estate can be seen in Macfarlane v Anstruther & Others (1870) 9 M. 117.
Confirmation that the decree was properly pronounced against the petitioner personally is, in my opinion, also to be found in the very form of, and procedure in, the action of accounting. The crave was that the court should ordain the petitioner to account for her intromissions as executrix-dative with the estate and to pay the respondent the sum of £13,392.46 "or such other sum as may appear to be the true balance due by her... and, in the event of... failing to enter appearance or failing to produce such account to ordain... to pay... the sum of £13,392.46". There are no averments in the present petition to indicate that the petitioner accounted and paid in terms of an account. Decree was pronounced against her of consent and without accounting, and accordingly in terms of the second part of the crave. It was accordingly pronounced in the context of a failure in the obligation to account and in terms of the third plea-in-law. No authority was cited to me to suggest that in such a situation an executrix-dative could not, and ought not to, be found liable without qualification, she having of course a right of relief or recourse against the executry estate to the extent that she may require to utilise her own funds to satisfy the decree pronounced.
In this connection I considered that submissions counsel for the petitioner made about the distinction between the persona of the petitioner as a private individual and her persona as executrix-dative undertaking the obligations that the deceased could no longer fulfil in propria persona had no relevance to the circumstances of this case. In fact what is involved is a payment from the estate of the deceased, which payment falls to be made only because the deceased died intestate. There is no question of an obligation which the deceased had in life being fulfilled following his death by his representative.
Counsel for the petitioner also made a number of submissions in support of an argument that, because two separate estates were involved, any decree taken could in the circumstances be taken only against her in her representative capacity restricted to the amount of the executry estate. The assets of the executry were held in an account separate from her own personal funds and clearly designated as held by her as executrix. That was consistent with the long recognised principle that sequestration of a person's estate did not attach estate held in trust as an executrix - see the Bankruptcy (Scotland) Act 1985, section 33(1)(b). Reference was made to section 5 of the said Act which provides for sequestration of an executry estate. However, that provision relates to the situation where the deceased was a debtor and sequestration of his estate is necessary for the purpose of dealing with claims against it. Indeed counsel for the petitioner recognised in his submission that sequestration of the estate of the deceased in the present case would not have been a competent way of resolving the problem. Then he turned to a number of other means by which a beneficiary, he said, might enforce his right to his share of an estate held in trust. What he referred to, however, were a number of complex procedures, such as seeking to have a judicial factor appointed to sequestrate, administer and distribute the estate and, if necessary, to pursue an action in the name of the estate against the person holding it and alleged to be in breach of trust with a view to establishing personal liability - see Town & County Bank v Walker (1904) 12 S.L.T. 411 and (1905) 13 S.L.T. 287; petitioning for the removal of the executrix and the appointment of a new one - see Lamont v Lamont 1908 S.C. 1033; seeking bankruptcy sequestration of the executry estate (already ruled out above); raising proceedings against the executrix qua executrix calling for action to be taken by her against the person and estate of the person who is in breach of the fiduciary duty, viz. herself; in the event that she refused the respondent might demand to himself use her name to sue qua executrix or insist on her assigning her right to him to sue qua executrix, always of course indemnifying her against expense - see Henderson v Robb (1887) 16R 341 at 345; and in exceptional cases a beneficiary in the position of the respondent might sue in his own name, but that could only be in circumstances where the executrix had acted in a seriously improper way - see e.g. Morrison v Morrison's Executrix 1912 S.C. 893. Under reference to these various forms of procedure counsel for the petitioner submitted that it would have been open to the respondent to set in train procedure whereby the petitioner might have become personally liable, but that that matter was not free from doubt because of various defences that might have been open to the petitioner. For reasons I have already given in this opinion I do not consider it is necessary for a beneficiary in the position of the respondent in this case to resort to any of these complex procedures, which largely relate to recovering losses caused to or debts due to the trust estate, to enforce payment of a clearly calculated sum being transferred to an executrix-dative who has no stateable ground for not making immediate payment of that sum.
A number of submissions were made about the status of an executrix-dative, the extent to which she bore the characteristics of a trustee and whether the decree pronounced against her could be said to have been pronounced in circumstances where she was in breach of her fiduciary duty and thus against her personally.
Counsel for the petitioner, having urged upon me various means by which action might be taken against an estate held in trust, in this case the executry estate of the deceased, then responded to submissions by counsel for the respondent that an executrix-dative was quite simply a trustee by submitting that an executrix-dative "is a species but a very unusual species of trustee". Under reference to the Stair Memorial Encyclopaedia Vol.24, para.169, counsel for the petitioner pointed to various differences between the two roles, e.g. in the way in which title to property was completed, in the more limited liability of an executrix, and in their respective functions, that of the executrix being to "ingather and distribute" the estate and that of a trustee being to "hold and administer" the trust funds. He referred also to section 20 of the Succession (Scotland) Act 1964, and in particular the first part of that section, which provides that an executrix-dative "shall have... the whole powers, privileges and immunities... which gratuitous trustees have...". That, he said, indicated that an executrix-dative and a trustee were two different animals with certain similar characteristics. However that submission largely ignored other important parts of section 20. The full terms of the section are as follows:
"An executor-dative appointed to administer the estate of a deceased person shall have in his administration of such estate the whole powers, privileges and immunities, and be subject to the same obligations, limitations and restrictions, which gratuitous trustees have, or are subject to, under any enactment or under common law, and the Trusts (Scotland) Acts 1921 and 1961 shall have effect as if any reference therein to a trustee included a reference to such an executor-dative:
Provided that nothing in this section shall exempt an executor-dative from finding caution for his intromissions or confer upon him any power to resign or to assume new trustees."
Plainly therefore an executor-dative can, like a trustee, have a role in "administering" an estate and in addition is subject to the same obligations as a trustee. It follows, therefore, that there was considerable substance in the submissions of counsel for the respondent under reference to section 20, the Stair Memorial Encyclopaedia, Fulton v Fulton (1864) 2 M. 893 per Lord Cowan at p.900, Fogo's Judicial Factor v Fogo's Trustees 1929 S.C. 546 per Lord Anderson at pps.553-554 and Inglis v Inglis 1983 S.C. 8, that an executor has fiduciary duties and may be held personally liable for breach thereof. However, it does not seem to me that detailed consideration of the differences between the respective roles of an executrix-dative and a trustee helps to resolve the present problem. The submissions that were made to me about the obligations of an executrix-dative and the consequences of breach of "fiduciary duty" owed by an executrix-dative were theoretical submissions made without any attempt to identify in what way the conduct of the petitioner might be said to be in breach of her fiduciary duty. The obligation to pay to a beneficiary a sum to which he is entitled, calculated and sent to the executrix for that purpose, is no more than an obligation to pay a debt. To say otherwise is to place a less stringent obligation on an executrix-dative to pay beneficiaries than the simple obligation of a debtor to pay his debts.
For these various reasons I have come to the conclusion that it was not inappropriate that decree should be pronounced against the petitioner without qualification.
Counsel for the respondent presented an alternative submission that, if I was against him on his main submission on the merits and decided that it was inappropriate for decree to be pronounced against the petitioner personally, I should nevertheless hold that, insofar as it was for expenses, the decree pronounced was properly pronounced against her personally. I note, however, that expenses were not taxed until after the deliverance was pronounced sequestrating the petitioner's estate. The petitioner could not have been sequestrated when she was on the strength of the decree for expenses alone prior to taxation. Had it been necessary to decide this point I would have found against the respondent.
Whether Recall of Sequestration Appropriate in all the Circumstances
Since I have decided that there was no procedural irregularity leading to the sequestration and that the decree was properly pronounced against the petitioner without qualification, the only remaining basis pled on which I could recall the sequestration is that in the whole circumstances of the case it is appropriate to do so. On this issue counsel for the respondent made no submission, opposition to the recall of the sequestration in principle having been withdrawn in a Minute of Amendment in June 1998. The sequestration of the petitioner was the trigger for operation of the bond of caution. Although the petitioner is critical of the fact that the cautioner paid the respondent, she does rely on the fact that the respondent has been paid in full as a factor which I should take into account as one of the overall circumstances justifying recall. I do so. She relies also on the fact that she was unable to attend the calling of the petition for sequestration because of a hospital appointment which was part of a series of examinations leading to a diagnosis that she suffers from a degenerative illness. While as an advocate it would be obvious to her that she could simply have instructed a solicitor to appear for her, this again is a circumstance which I take into account. Although there are certain debts, there are liquid assets in excess of the amount thereof, and the trustee did not oppose the petition. It is also important in my opinion that the sequestration arose out of the petitioner's conduct in relation to her role as executrix on her deceased brother's estate, and it is not suggested that there is any other failure to meet debts. I am prepared to grant recall of the sequestration in all the circumstances subject to the requirements of section 17(3)(a) of the 1975 Act.
Responsibility for Expenses of Interim and Permanent Trustee
In terms of section 17(3)(a) the court must make provision for the payment of outlays and remuneration of the interim trustee and permanent trustee by directing that such payment shall be made out of the debtor's estate or by requiring any person who was a party to the petition for sequestration to pay the whole or any part of the said outlays and remuneration. I am in no doubt that these expenses should be met out of the petitioner's estate. Even if I had accepted either of the other arguments presented to me to justify recall, and had found that there was substantial or procedural irregularity, I would still have directed that payment of these expenses should be made by the petitioner. The petitioner made no effort to resolve the issue when counsel on her behalf consented to decree. She took no action when a charge was served. She did not oppose the petition for sequestration in the circumstances
narrated above. Thereafter she did not raise these proceedings until the very last day on which she could, ten weeks after the sequestration order was made. It has not been contended that there was any sound basis for the petitioner not to pay. This whole sorry mess has been caused by her own failure to face up to reality.
Interlocutor
I shall accordingly sustain the second plea-in-law for the petitioner. I shall sustain the respondent's first and third pleas-in-law and delete paragraphs 9 and 10 of the petition as irrelevant because they are predicated on an error in procedure which has not been established, and I shall refuse to give effect to paragraphs (v) and (vi) of the prayer of the petition.
Before I can deal with the third plea-in-law for the petitioner, which I have indicated I am prepared to sustain in respect of it being appropriate for the court to recall the sequestration, I have to be satisfied in respect of section 17(3)(a). In that regard I shall put the case out By Order on 8 April 1999 to enable the petitioner to present to me a clear voucher by the permanent trustee expressing his satisfaction that all outstanding debts, including any claim by the petitioner's cautioner, can be met from the petitioner's own estate and that the balance of her estate after paying these debts will be sufficient to meet the outlays and remuneration of him and the interim trustee. If I am satisfied by what is presented to me when the case calls By Order, I shall recall the sequestration.