M'Mahon v. Matheson [1900] ScotLR 37_290 (12 January 1900)

M'Mahon v. Matheson [1900] ScotLR 37_290 (12 January 1900)

The decree was properly construed as being against M'Mahon in his capacity as executor/trustee, not personally. There were no trust funds in his hands at the time of intimation of the claim, and no impropriety in administration was established. Therefore, diligence against his private property was incompetent and interdict was properly granted.

Citation
[1900] ScotLR 37_290
Parties
Pursuer/respondent: James M'Mahon; Defender/appellant: Dr Matheson
Jurisdiction
Scotland
Judgment Date
12 January 1900
Procedural Posture
Civil Appeal / Appeal From Interlocutor of Sheriff Substitute
Outcome
appeal dismissed
Legal Topics
Executor Liability, Construction of Decree, Admissibility of Evidence to Construe Decree, Personal Vs Representative Liability
Trusts and Estates Civil Procedure Executor Liability Construction of Decree Admissibility of Evidence to Construe Decree Personal Vs Representative Liability

Case Brief

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Parties

James M'Mahon

Pursuer/respondent

Dr Matheson

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Interlocutor of Sheriff Substitute

Legal Issues

  1. 1 Whether a decree against an executor is to be construed as personal or representative liability
  2. 2 Whether evidence is admissible to construe the decree
  3. 3 Whether diligence against the executor's private property is competent

Ratio Decidendi

The decree was properly construed as being against M'Mahon in his capacity as executor/trustee, not personally. There were no trust funds in his hands at the time of intimation of the claim, and no impropriety in administration was established. Therefore, diligence against his private property was incompetent and interdict was properly granted.

Court Disposition

appeal dismissed

Orders

  • interdict granted as craved
  • interdict declared perpetual