Machardy v. Steele [1902] ScotLR 39_472 (20 March 1902)

Machardy v. Steele [1902] ScotLR 39_472 (20 March 1902)

The Court held that the executors nominated in the last will have prima facie good title to confirmation, and objections based on a prior mutual settlement cannot be determined in the confirmation process without all interested parties present. The merits of competing deeds must be resolved in a separate action; thus, confirmation should be granted to the executors named in the last will until set aside by competent process.

Citation
[1902] ScotLR 39_472
Parties
Appellants: Alexander Machardy and others; Respondents: David Steele and others
Jurisdiction
Scotland
Judgment Date
20 March 1902
Procedural Posture
Confirmation Petition (executor Appointment) / Appeal From Sheriff to Court of Session Inner House, First Division
Outcome
Appeal allowed; interlocutors of Sheriff recalled; interlocutor of Sheriff-Substitute affirmed.
Legal Topics
Executor Appointment, Mutual Wills, Contractual Settlements, Testamentary Disposition, Competition Between Executors
Succession Law Trusts and Estates Executor Appointment Mutual Wills Contractual Settlements Testamentary Disposition Competition Between Executors

Case Brief

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Parties

Alexander Machardy and others

Appellants

David Steele and others

Respondents

Procedural Posture

Confirmation Petition (executor Appointment) / Appeal From Sheriff to Court of Session Inner House, First Division

Legal Issues

  1. 1 Which set of executors is entitled to confirmation: those nominated in a prior mutual contractual settlement or those nominated in a later will?
  2. 2 Does a mutual settlement bar the survivor from appointing new executors by subsequent will?
  3. 3 Should the court decide the merits of competing deeds in a confirmation process without beneficiaries present?

Ratio Decidendi

The Court held that the executors nominated in the last will have prima facie good title to confirmation, and objections based on a prior mutual settlement cannot be determined in the confirmation process without all interested parties present. The merits of competing deeds must be resolved in a separate action; thus, confirmation should be granted to the executors named in the last will until set aside by competent process.

Court Disposition

Appeal allowed; interlocutors of Sheriff recalled; interlocutor of Sheriff-Substitute affirmed.

Orders

  • Executors nominated in Miss Boath's last will confirmed.
  • Remit to Sheriff-Substitute to proceed as may be just.