Morrison v. Morrison's Executrix and Others [1912] ScotLR 578 (20 March 1912)

Morrison v. Morrison's Executrix and Others [1912] ScotLR 578 (20 March 1912)

A beneficiary cannot sue in his own name to enforce a right vested in the executor, but may amend the instance to sue in the executor's name if the executor refuses to act, provided the executor is indemnified against expenses. Where caution cannot be found, consignation of a reasonable sum may be accepted, with leave for the executor to seek further indemnification if required.

Citation
[1912] ScotLR 578
Parties
Pursuer (reclaimer): Robert Morrison; Defenders (respondents): Mrs Margaret M'Killop or Morrison (widow and executrix of Alexander Morrison junior) and others; Executor (to Be Sisted as Pursuer): George Steel Morrison (executor-dative of William Morrison)
Jurisdiction
Scotland
Judgment Date
20 March 1912
Procedural Posture
Civil (court of Session, Inner House, Second Division) / Reclaiming Motion (appeal) Against Dismissal for No Title to Sue; Application to Amend Instance and Proceed in Executor's Name
Outcome
Interlocutor recalled; amendment allowed; action to proceed in executor's name on consignation and payment of expenses.
Legal Topics
Title to Sue, Executor's Role, Beneficiary's Rights, Caution for Expenses, Consignation, Amendment of Instance
Civil Procedure Succession Law Trusts and Estates Title to Sue Executor's Role Beneficiary's Rights Caution for Expenses Consignation +1 more

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Parties

Robert Morrison

Pursuer (reclaimer)

Mrs Margaret M'Killop or Morrison (widow and executrix of Alexander Morrison junior) and others

Defenders (respondents)

George Steel Morrison (executor-dative of William Morrison)

Executor (to Be Sisted as Pursuer)

Procedural Posture

Civil (court of Session, Inner House, Second Division) / Reclaiming Motion (appeal) Against Dismissal for No Title to Sue; Application to Amend Instance and Proceed in Executor's Name

Legal Issues

  1. 1 Whether a beneficiary has title to sue in place of an executor who refuses to act
  2. 2 Whether the action may proceed in the executor's name on consignation of a sum in lieu of caution for expenses
  3. 3 Whether the sum consigned is sufficient to indemnify the executor

Ratio Decidendi

A beneficiary cannot sue in his own name to enforce a right vested in the executor, but may amend the instance to sue in the executor's name if the executor refuses to act, provided the executor is indemnified against expenses. Where caution cannot be found, consignation of a reasonable sum may be accepted, with leave for the executor to seek further indemnification if required.

Court Disposition

Interlocutor recalled; amendment allowed; action to proceed in executor's name on consignation and payment of expenses.

Orders

  • Recall of Lord Ordinary's interlocutor dismissing the action.
  • Pursuer to consign £200 as security for expenses.