Johnston (Johnston's Executor) v. Dobie (Hastie's Trustee) and Others [1906] ScotLR 44_34 (03 November 1906)

Johnston (Johnston's Executor) v. Dobie (Hastie's Trustee) and Others [1906] ScotLR 44_34 (03 November 1906)

The prior appointment of executor-dative qua factor subsists until the estate is fully administered and excludes subsequent appointments; the pursuer's appointment was inept and he has no title to sue either as executor or as individual beneficiary.

Citation
[1906] ScotLR 44_34
Parties
Pursuer and Reclaimer, Executor Dative of Mrs Julia Mout Hastie or Johnston, and Individual Claimant: William Johnston; Defender and Respondent, Surviving Trustee and Executor of John Hastie: Joseph Jardine Dobie; Defender and Respondent, Trustee and Executor of James Stewart: Salmon (Judicial Factor on James Stewart's estate)
Jurisdiction
Scotland
Judgment Date
03 November 1906
Procedural Posture
Action of Reduction and Count, Reckoning, and Payment / Inner House, First Division, Reclaiming Motion Against Lord Ordinary's Dismissal
Outcome
action dismissed; interlocutor adhered to
Legal Topics
Executor Dative, Title to Sue, Confirmation Ad Omissa, Beneficiary Rights, Effect of Attaining Majority
Succession Law Trusts and Estates Executor Dative Title to Sue Confirmation Ad Omissa Beneficiary Rights Effect of Attaining Majority

Case Brief

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Parties

William Johnston

Pursuer and Reclaimer, Executor Dative of Mrs Julia Mout Hastie or Johnston, and Individual Claimant

Joseph Jardine Dobie

Defender and Respondent, Surviving Trustee and Executor of John Hastie

Salmon (Judicial Factor on James Stewart's estate)

Defender and Respondent, Trustee and Executor of James Stewart

Procedural Posture

Action of Reduction and Count, Reckoning, and Payment / Inner House, First Division, Reclaiming Motion Against Lord Ordinary's Dismissal

Legal Issues

  1. 1 Whether appointment as executor-dative qua factor for minor and pupil next-of-kin ceases automatically upon wards attaining majority
  2. 2 Whether subsequent appointment of executor-dative is inept where prior appointment subsists
  3. 3 Whether pursuer has title to sue as executor-dative or as individual beneficiary

Ratio Decidendi

The prior appointment of executor-dative qua factor subsists until the estate is fully administered and excludes subsequent appointments; the pursuer's appointment was inept and he has no title to sue either as executor or as individual beneficiary.

Court Disposition

action dismissed; interlocutor adhered to

Orders

  • plea of no title to sue sustained
  • action dismissed