[2016] EDIN SC 6




In the cause



(Executrix-Dative of the deceased Mrs Ellen McGowan or Patton)







(Executor-Dative to the deceased Mrs Ellen McGowan or Patton)




Act:   Mr M Thomson, Messrs Thompson and Brown, Solicitors, Glasgow

Alt:   Mr F McShane, Advocate, instructed by Inksters, Solicitors, Wick


GLASGOW, 22 December 2015.  The Sheriff, having resumed consideration of the cause, Grants the pursuer’s motion and Recalls the decree granted on 21 March 2014 decerning the defender executor-dative on the estate of Ellen McGowan or Patton; Assigns 14 January 2016 at 9.30 am as a hearing on expenses.




[1]        This is a petition by an executrix-dative (the pursuer) to recall the subsequent appointment of an executor-dative (the defender) on the same estate.   The defender was aware that on 19 July 2013 the pursuer had been appointed executrix-dative as he had been the defender in a litigation raised by the pursuer as executrix-dative. 

[2]        During the currency of that earlier litigation (see paras [5] to [7] below) and while employing the solicitors he had instructed to defend that earlier litigation at the instance of the executrix-dative, the defender lodged a petition for appointment as executor-dative.  His petition did not seek to conjoin the appointment with the earlier appointment of the pursuer.  His crave did not seek warrant to intimate to the pursuer as existing executrix-dative.  In the condescendence there was no reference to the earlier appointment of the pursuer.  The plea-in-law reflected the crave.

[3]        Accordingly, on 21 March 2014, the defender was decerned executor-dative qua son of the deceased with no reference to the earlier appointment.  The pursuer now seeks the recall of the defender’s appointment.  

[4]        A hearing was assigned for 24 November 2015 to determine further procedure.  At that hearing the pursuer’s solicitor moved me to grant the petition.  I was reluctant to do so as the hearing was to determine further procedure rather than to dispose of the issue.  However, standing the averments, I assigned a hearing for 27 November 2015 when Mr Thompson represented the pursuer and Mr McShane, Advocate, represented the defender. 


Submissions on behalf of the pursuer

[5]        Mrs Ellen McGowan or Patton passed away on 2 January 2013.  She had five children including the pursuer, Elizabeth Dobbie and the defender, Michael Patton.  It is suggested that the defender had ingathered the estate and had refused to account for or to distribute it.  He was a vitious intromitter.  When intromitting with the estate the defender had not sought appointment as executor-dative.  He had not obtained caution or confirmation.

[6]        The pursuer therefore petitioned to be appointed executrix-dative.  She was entitled to do so.  Her petition was granted on 19 July 2013. 

[7]        The pursuer then commenced litigation against the defender.  The action was warranted on 14 January 2014 and served upon the defender.  The defender was therefore aware that the pursuer had been appointed executrix-dative. 

[8]        During the currency of that litigation and without intimation upon the pursuer as executrix-dative, the defender lodged his own petition for appointment as an executor-dative.  He did so while defending the payment action.  The defender’s petition for appointment as executor-dative made no reference to the earlier appointment of the pursuer as executrix-dative.  The defender did not seek warrant to intimate the petition on the pursuer.  His crave did not seek to conjoin his petition for appointment as executor-dative with the prior petition in favour of the pursuer. 

[9]        The defender’s petition was granted unopposed on 14 March 2014. 

[10]      This, it was submitted, meant that the defender had obtained an appointment as executor-dative “by clandestine means” namely without intimation upon the existing executrix-dative. 

[11]      I was referred to section 44 of the Sheriff Courts (Scotland) Act 1876 which provides a mechanism for appointment of an executor-dative.

[12]      I was also referred to Currie on Confirmation of Executors, 9th Ed. by Eilidh M Scobie at paragraph 7.32 for the proposition that “the averments must show that there is no individual who has a subsisting prior claim to the office of executor”.

[13]      In his answers the defender had referred to section 44 of the Sheriff Courts (Scotland) Act 1876 which should be read with reference to sections 4 and 5 of the Confirmation of Executors (Scotland) Act 1858 (as amended).  The interpretation advanced by the defender would be a departure from an interpretation which has stood the test of time for 140 years.  Accordingly, the appointment in favour of the defender should be recalled. 


Submissions on behalf of the defender

[14]      Counsel did not dispute that the court had the power to recall the appointment of the defender as executor-dative.  His position was that the defender should remain in office.  Counsel invited me to refuse the petition and to find the pursuer personally liable in expenses. 

[15]      The pursuer in the present action lacks legal capacity to bring the action.  This is because, at the time the application for recall was lodged with the court, there were two executors-dative each having been decerned by the court.  An executor is simply the representative of the deceased.  He stands eadem persona cum defuncto (here: the same person as the deceased) and where there is more than one executor they have but one office.  Thus any legal action requires the consent of all the executors (Erskine III, ix 40).  Therefore the pursuer does not have the legal authority to lodge the present application or to pursue this action as an executrix-dative without the consent of the defender. 

[16]      As both executors together are the same person as the deceased this gives the result that this application bears to be the deceased suing the deceased herself.  This, it was argued, is patently impossible. 

[17]      Instead, the proper method for recall should have been by the pursuer as an individual (not in her capacity as an executrix-dative) craving the court to intimate the petition for recall upon the defender as an individual. 

[18]      Section 44 of the Sheriff Courts (Scotland) Act 1876 when read with sections 4 and 5 of the Confirmation of Executors (Scotland) Act 1858 (as amended) meant no more than the defender had to lodge a petition for appointment as executor-dative.  All the defender had to do was to follow the strict terms of a style for appointment as executor-dative.  The defender was under no obligation to aver that an earlier executrix-dative had been appointed.  The defender was under no obligation to crave intimation upon that existing executrix-dative. 

[19]      I pressed counsel on the basis of his argument.  His position was that none of this information was required.  All that the defender had to do was to stick rigidly to the style.  It is for the sheriff clerk to then ascertain the name, address and date of death of a deceased and to search the court records from the date of the death to check whether anyone else may have been appointed executor.  This applies even where a petitioner is aware of the earlier appointment. 

[20]      Thereafter, on discovery of an earlier appointment, it is for the sheriff clerk to intimate the subsequent petition, not for the petitioner.  

[21]      Here counsel did not dispute that the defender had been aware of the prior appointment at the time he lodged his petition.  The defender had, I was advised, sought appointment as executor-dative in addition to his sister’s appointment. 

[22]      That being so, I pressed counsel as to why the particular style chosen had been used in preference to the style for appointment as co-executor with the earlier appointment.  I was told that the solicitors had “not addressed their minds to that possibility”. 

[23]      Although somewhat embarrassed by such a concession, counsel maintained that the style submitted on behalf of the defender remained competent and that the obligation to search for any prior appointment as executor and/or intimate the subsequent petition to any pre-existing executor rested with the sheriff clerk despite a subsequent petitioner having this information at his fingertips. 

[24]      The defender had followed the style within the schedule 2 of the Act of Sederunt (Confirmation of Executors) 1964. 

[25]      Counsel argued that the pursuer could not have objected to the defender’s petition even if it had been intimated to her.  This was because the defender had the same right to appointment.  They are siblings.  In any event, the defender’s appointment as executrix-dative had been disclosed in the Record in the ongoing action for payment.  Therefore the pursuer had received intimation of the defender’s appointment, albeit after decree had passed. 

[26]      Counsel also argued that this application was in the nature of an appeal in respect of which the pursuer had only twenty one days within which to appeal.  As the pursuer had taken no steps to object or challenge the defender’s decree in the intervening period, the application should be summarily dismissed.  The pursuer had acquiesced to the defender being in office as an executor and is personally barred from challenging the basis of the defender’s decerniture.  This argument though made in brief in written form was not developed, perhaps understandably.

[27]      The defender made further observations relating principally to relevancy and specification of the pursuer’s initial writ but I do not propose to narrate those criticisms for the purposes of this decision.  They were at best glancing blows.



[28]      I find the submissions on behalf of the defender arid.  I deal firstly with the contention that the pursuer has raised this action in the wrong capacity. 

[29]      There is no dispute that the pursuer is a (prior and correctly appointed) executrix-dative on the estate of the late Mrs Ellen McGowan or Patton, decree having been granted in her favour on 19 July 2013.  It is not disputed that the defender subsequently applied for appointment as an executor-dative nor that, as part of that process, the pursuer did not receive intimation of that subsequent petition.  Had that petition been intimated to the pursuer it would have been intimated to her as executrix-dative (not as an individual). 

[30]      Accordingly, it seems to me appropriate for the executrix-dative to bring to the court’s attention circumstances whereby the defender was appointed in error.  It is a fiction to suggest that the deceased is suing herself.  The properly appointed executrix-dative is seeking the recall of the appointment of someone who should not have been appointed by the court without prior intimation to her.  In reaching this view I am not excluding the possibility of a petition at the instance of the pursuer as an individual (or a beneficiary having an interest in an estate) also being competent.  If there has been an error in the appointment to the office of executor-dative in the circumstances such as exist here, the court should be slow to stand on form.

[31]      Here it is conceded that the correct procedures for the appointment of the defender as an executor-dative were not followed.   The result of such a failure can be confusion and disarray. 

[32]      The defender had applied for appointment as executor-dative in the knowledge that his sister had already been appointed executrix-dative. 

[33]      In seeking appointment as executor-dative the defender became actor in rem suam (here: acting in conflicting capacities).  As Lord Neaves opined in Aitkin v Hunter (1871) 9M 756 at 762:

“It appears to me from first to last the rule of the law of Scotland has been that any one holding a fiduciary character, whether that of guardian or trustee, cannot lawfully become actor in rem suam”. 


In short, he was not only the defender in an ongoing litigation but would become a pursuer (as executor).  Of course, that may have been the intention.  It was certainly the effect.

[34]      Moreover each executor had a decree appointing each separately.  In other words, neither interlocutor referred to the other, yet both had the imprimatur of this commissariot.  Debtors, creditors, cautioners and beneficiaries could have been confused, to say the least, at the court appointing two executors independently, especially here. 

[35]      On behalf of the defender it is argued that intimation would have made no difference.  This is because the pursuer would not have been entitled to object to the appointment of her sibling as a co-executor.  In narrow terms that may be true (Russo v Russo 1998 SLT (Sh Ct) 32 per Sheriff Principal Cox).  However, an executor has wider options than simply objecting or not to an appointment of a co-executor. 

[36]      Here, for example, the defender’s behaviour smacks of tactics.  It is suggested (but I do not know the veracity of the allegation) that the defender had ingathered the estate prior to the appointment of the pursuer as executrix-dative and that he had refused and continues to refuse to account for it or to distribute the estate to those entitled to it. 

[37]      Accordingly, the intimation would have alerted the pursuer to the fact that the defender was seeking appointment at a time when she (acting as executrix-dative) was litigating against him.  If she had grounds to object she could have done so timeously or taken an entirely different course.  For example, she may have sought the appointment of a judicial factor to bring the defender to heel. 

[38]      The point is not whether she would have pursued that or any other course.  The point is that she was denied a choice by the failure in intimation.  The court has a role to ensure that the correct procedures are followed. 

[39]      What are the correct procedures?  There is no dispute that intimation of the defender’s subsequent petition for appointment as executor-dative should have been made to the pursuer as executrix-dative.  The issue is by whom?

[40]      Section 44 of the Sheriff Courts (Scotland) Act 1876 reads as follows:

“The sheriff clerk shall, after a petition for the appointment of an executor has been intimated by him as provided by section four of the Confirmation of Executors (Scotland) Act 1858, and after receiving the certified copy of the printed and published particulars therein set forth, forthwith certify these facts on the petition in the following or similar terms: ‘Intimated and published in terms of the statute,’ which certificate…shall be dated and signed by him, and shall be sufficient evidence of the facts therein set forth: Provided always, that special intimation shall be made to all executors already decerned or confirmed to a deceased person of any subsequent petition for the appointment of an executor which may be presented with reference to the personal estate of the same deceased person.”(my emphasis)


[41]      Section 44 does not state or imply that it is the function of the sheriff clerk to intimate a petition on an already decerned executor-dative.  If that were the intention of Parliament the statute would be explicit.  The interpretation of section 44 suggested by the defender would be a departure from an interpretation unchallenged since 1876.  The sheriff clerk intimates the petitions on the walls of court.  It is for a petitioner to intimate the second petition to an already decerned executor-dative.      

[42]      Moreover, section 5 of the Confirmation of Executors (Scotland) Act 1858 is edifying:

“The commissary clerk, after receiving certified copy of the printed and published particulars, shall forthwith certify on the petition that the same has been intimated and published…

Provided always, that where a second petition for confirmation is presented in reference to the same estate, the commissary shall direct intimation of such petition to be made to the party who presented the first petition”. (my emphasis)


[43]      Put shortly, the commissary clerk has an obligation to publish intimation on the walls of court and to certify that this had been done but where, as here, there had been a prior petition, the sheriff clerk’s function is to direct that intimation should be made by the petitioner to the executor already decerned.  The wording is clear.  The commissary clerk directs that intimation should be made by a petitioner upon an already decerned executor-dative.  A petitioner should disclose any earlier appointment known to him or her.

[44]      In terms of the Act of Sederunt (Confirmation of Executors) 1964 (SI 1964/1143) Schedule 2, Cond. 2 and the note thereto, a petitioner must aver that there is no individual who has a subsisting prior claim to the office of executor.  In addition paragraph 6 of the Act of Sederunt (Confirmation of Executors) 1964 refers to the form of petition “as nearly as may be in the form set out in Schedule 2”(my emphasis), allowing  the form to be adapted to meet the prevailing facts.  Here the defender was aware that the pursuer had been appointed as executrix-dative.  Despite this, no reference to the prior appointment was made either in the crave, the condescendence or in the plea-in-law.

[45]      It was suggested that an obligation rests on the sheriff clerk to trawl his records to establish whether a prior appointment has been made.  It was suggested that a petitioner (already aware of a prior appointment) has no obligation whatever to disclose that prior appointment so that intimation can be made.  I can deal with this in short terms.

[46]      This is information already in the knowledge of the petitioner.  No case was referred to for authority that the court had either accepted such a trawling function or had fallen foul of such an obligation in the past.  I was not referred to an authority or textbook to support the contention that the sheriff clerk should embark upon a trawling exercise for each petition presented on the basis that at some prior indeterminate time an executor may have been appointed to the same estate.  Indeed prior to the advent of computers such a task would have been an immense undertaking in a commissariot having a conurbation the size of Glasgow.

[47]      The defender’s interpretation, unsupported by authority, would constitute a departure from the interpretation and obligations incumbent on a petitioner since the nineteenth century.

[48]      In short, I reject the interpretation suggested by counsel in relation to section 44 of the Sheriff Courts (Scotland) Act 1876 when read with the Confirmation of Executors (Scotland) Act 1858, sections 4 and 5.  I reject the contention that all a petitioner requires to do is to choose a style and adhere slavishly to it.  The duties on a petitioner go much further than that, especially where a petitioner seeks to occupy an office of trust with all the fiduciary duties which accompany such an office.  Current practice correctly follows the ordinary meaning of these sections.  Here the second petitioner (the defender in this action for recall) should have disclosed the already decerned executrix-dative, sought warrant for intimation and intimated his petition to the executrix-dative.

[49]      Counsel argued that this application is in the nature of an appeal.  I do not agree.  If this were an appeal I could not dispose of it, yet the competency of the procedure was not challenged.  This is a petition to recall.  A more common situation arises where, unbeknown to a petitioner, an earlier petition has been granted necessitating the recall of the second petition.  There can be no time limit.  Here, however, this appointment was caused by the use of the wrong style, a lack of candour and a consequent failure to intimate the petition.  This is not an appeal but a recall of an appointment made on an erroneous basis – that is not exceptional, but the grounds for such a recall are.

[50]      This brings me to the use of styles.  I was told by counsel that his instructing solicitors had not addressed their mind to the possibility that alternative styles should have been considered.  There is the rub.  The arguments put forward by the defender were redolent of a strain on the ordinary, logical, pragmatic and historical interpretation of the 1876 and 1858 Acts.   In saying this, counsel did not concede that the wrong style was chosen.  Rather counsel was delicate in arguing that although the solicitors had not addressed their minds to other styles, the solicitors were entitled to lodge the style chosen by them (notwithstanding a crave, the condescendence and a plea-in-law which made no reference to a purported desire to conjoin that petition with the earlier appointment, nor indeed made reference to that earlier appointment).

[51]      The styles are relevant only where the facts support what is averred and the craves reflect what is sought.  Styles guide the vigilant.  They ensnare the blinkered.

[52]      Separately, the undercurrent here is concerning.  Had I not been told that solicitors had failed to address their minds to alternative (correct) styles, I may have ordained the defender to appear at the bar of the court for an explanation.  Had I found that the court had been inveigled into appointing the defender as executor-dative in this manner, deliberately and on his instructions; the consequences to him may have been severe.



[53]      The arguments of counsel were redolent of a defender seeking refuge in strained interpretations of longstanding statutes and practice to justify the manner by which the defender’s decree had been obtained. 

[54]      Both parties had wanted expenses to follow success and both wanted the other to be found personally liable.  For the purposes of the recall the defender was referred to in his capacity as an executor.  Presumably he had been designed as such because, until decree is recalled, the defender remains an executor-dative.  However his petition for appointment as executor-dative was presented in his name, on his instructions and the basis for it has been defended by him. 

[55]      I also considered, as I had been invited to do by the pursuer’s solicitor, whether to find the defender’s solicitors liable in expenses standing the concession that they had not addressed their minds to a more appropriate style.  They had also acted for the defender in his defence to the payment action and were therefore aware of the correct position.  Subject to any further representations the parties may wish to express, I am inclined, by the smallest of margins, not to do so.

[56]      Expenses are compensatory, not penal.  The award is a matter of judicial discretion designed to achieve substantial justice (Shepherd v Elliot (1896) 23 R 695 per LP Robertson at page 696).  That discretion must be exercised reasonably.  The pursuer has been successful and is entitled to expenses.  Here there are compelling reasons why, in the exceptional circumstances of this case, the estate should not suffer pecuniary loss (leaving aside the small value of this estate).  Such are the circumstances of the defender’s petition, the timing of its presentation, terms of the crave, the averments and the plea-in-law; that I propose to make an award of expenses against the defender personally on a solicitor client, client paying basis (Macphail, Sheriff Court Practice, 3rd ed, para 19.45). 

[57]      Parties had asked me to express my views in relation to expenses depending on the terms of my decision.  These are my views but at the invitation of parties I have also fixed a hearing on expenses.  If parties accept my proposed determination on expenses the hearing on expenses does not need to take place.  I am mindful of the ongoing costs of this matter.  I was asked by counsel to certify the case as suitable for the instruction of junior counsel.  I would not be so minded.  The issues were made opaque by the manner by which the defender had petitioned the court.  Counsel endeavoured unsuccessfully to extricate the defender from a situation of his own making.

[58]      Finally, the parties’ mother, Ellen McGowan or Patton, died intestate on 2 January 2013.  She left five children/beneficiaries and an estate of £33,000.  Thus far this estate has resulted in litigation at Glasgow Sheriff Court, a subsequent appeal to the sheriff principal and two actions proceeding in Wick Sheriff Court leaving aside this matter before me.   I say no more.