Mitchell (Alexander's Executor) v. Mackersy [1905] ScotLR 43_107 (06 December 1905)

Mitchell (Alexander's Executor) v. Mackersy [1905] ScotLR 43_107 (06 December 1905)

An executor is not a trustee for the deceased's creditors but stands in the shoes of the deceased, being debtor to her creditors and creditor to her debtors. Therefore, the law-agent's claim for compensation extinguishes the executor's claim, following Globe Insurance Co. v. Mackenzie and Stewart's Trustee v. Stewart's Executrix.

Citation
[1905] ScotLR 43_107
Parties
Pursuer/respondent: James Mitchell (Executor of Mrs Catherine Mitchell or Alexander); Defender/appellant: William Robert Mackersy
Jurisdiction
Scotland
Judgment Date
06 December 1905
Procedural Posture
Appeal / Court of Session Inner House Second Division
Outcome
appeal sustained; Sheriff's judgment recalled
Legal Topics
Executor's Legal Status, Compensation/set Off, Law Agent's Rights, Expenses in Appeal
Succession Compensation Debt Recovery Executor's Legal Status Compensation/set Off Law Agent's Rights Expenses in Appeal

Case Brief

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Parties

James Mitchell (Executor of Mrs Catherine Mitchell or Alexander)

Pursuer/respondent

William Robert Mackersy

Defender/appellant

Procedural Posture

Appeal / Court of Session Inner House Second Division

Legal Issues

  1. 1 Is an executor a trustee for creditors or merely the representative of the deceased?
  2. 2 Can a law-agent set off a debt owed by the deceased against a debt owed to the executry estate?
  3. 3 Are executry funds subject to compensation for debts due by the deceased?

Ratio Decidendi

An executor is not a trustee for the deceased's creditors but stands in the shoes of the deceased, being debtor to her creditors and creditor to her debtors. Therefore, the law-agent's claim for compensation extinguishes the executor's claim, following Globe Insurance Co. v. Mackenzie and Stewart's Trustee v. Stewart's Executrix.

Court Disposition

appeal sustained; Sheriff's judgment recalled

Orders

  • Sheriff's judgments recalled
  • Remitted for further procedure