Donald v Donald
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1912 |
| Docket Number | No. 37. |
| Date | 29 November 1912 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Salvesen, Lord Guthrie.
Sheriff—Process—Challenge of validity of will ope exceptionis—Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), First Schedule, Rule 50—‘Cause’—Petition.
Rule 50 of the First Schedule to the Sheriff Courts (Scotland) Act, 1907, enacts:—‘When a deed or writing is founded on by any party in a cause, all objections thereto may be stated and maintained by way of exception, without the necessity of bringing a reduction thereof.’
In a petition in the Sheriff Court, under sec. 10 of the Conveyancing Act, 1874, for completion of title to lands belonging to a deceased person by his heir-at-law, objections were lodged by the executor and general disponee of the deceased under a will executed by him. The petitioner in answer sought to set aside the will, averring that it had been impetrated by the objector from the deceased by fraud and circumvention.
Held that, notwithstanding the terms of Rule 50, the will could not, even so far as constituting a bar to the granting of the petition, be competently set aside by way of exception in that process; and process sisted to allow the petitioner to bring an action of reduction.
Observed by Lord Salvesen:—‘I think it must be implied in Rule 50 that the objection which may be stated and maintained by way of exception is one which the Sheriff can finally dispose of, and that his judgment will supersede the necessity of bringing a reduction of the deed challenged.’
Held, further, that the petition and answers constituted a ‘cause’ within the meaning of Rule 50.
In April 1912 James Alexander Donald, Glasgow, presented a petition under section 10 of the Conveyancing (Scotland) Act, 1874,* for completion of his title to certain lands. The lands were the property of Alexander Donald (hereinafter referred to as Alexander Donald primus), who died on 18th October 1911 without having taken infeftment.
A minute of objections to the petition was lodged by Alexander Donald (hereinafter referred to as Alexander Donald secundus), Hard-gate, Duntocher, who stated that under the will of Alexander Donald primus, dated 17th October 1911, he was appointed executor-nominate and general disponee; that as such general disponee he had been confirmed executor-dative by the Sheriff at Dumbarton; that he had entered into possession and management of the deceased's estate; that he was in right of the whole heritable property which belonged to the deceased at his death; and that in the circumstances the petitioner had no right or title to make or insist in his application, which should accordingly be dismissed.
The petitioner lodged answers and a statement of facts in which he alleged that the will founded on by the objector had been impetrated by him from the deceased, while weak and facile, by fraud and circumvention, in circumstances upon which he condescended in detail.
The objector pleaded;—(1) No title to sue. (4) Reduction ope exceptionis being incompetent in the present proceedings, the prayer of the petition should be refused, with expenses.
The petitioner pleaded;—(1) No title to object. (2) The said pretended settlement having been impetrated from the deceased while he was weak and facile in mind and easily imposed upon, by the fraud and circumvention of the objector, to the lesion of the said deceased Alexander Donald and his heir-at-law, should be set aside ope exceptionis. (3) The deceased Alexander Donald at the date of the granting of the said alleged settlement having been incapable of giving instructions as to the disposal of his means and estate, the said pretended settlement should be reduced and set aside ope exceptionis, with expenses.
On 10th July 1912 the Sheriff-substitute (Macdiarmid) pronounced this interlocutor:—‘Repels the pleas in law for the objector and the first plea in law for the petitioner: Finds the answers relevant: Allows parties a proof of their respective averments relative to the will dated 17th October 1911, the petitioner to lead.’
The objector, Alexander Donald secundus, appealed to the Court of
Session, and the case was heard before the Second Division (without Lord Dundas) on 29th and 30th October 1912.
Argued for the objector;—The question of the validity of the will could not competently be dealt with in the present process. Rule 50 of the Sheriff Courts Act, 1907,1 did not apply, for none of the conditions of the rule had been satisfied. What the objector really relied on was not the will, but his decree of confirmation thereunder, and a decree of Court was not a ‘deed or writing’ within the meaning of the rule.2 Nor was the present process a ‘cause.’ It was a mere administrative proceeding instituted under, and still regulated by, section 10 of the Conveyancing Act, 1874,3 and the special code of procedure prescribed by the Titles to Land Act, 1868,4 section 27 and following sections. The rules of the Sheriff Courts Act, 1907, which expressly applied to ‘procedure in the ordinary Court,’ had no application to such a proceeding as this, and that fact was expressly recognised by Rule 1. Further, neither Rule 50 in the Act of 1907 nor section 11 of the Act of 1877,5 which it re-enacted, made reduction competent in the Sheriff Court.6 It was obviously inconvenient to entertain objections to the validity of a will otherwise than by way of a reduction, for a reduction would be res judicata against all parties, while a decision in this process would not be binding on anyone except the parties thereto. The provisions of Rule 50 applied only where a document such as a receipt or a discharge was produced in evidence.7 It must be a document the validity of which could be considered and determined by the Sheriff in the cause before him. It was impossible to determine the validity of a will in the absence of all the beneficiaries and other parties interested in reducing or maintaining it. In any case, in a petition for service under section 10 of the Conveyancing Act, 1874, the validity, as distinct from the construction, of a will was not a question which could...
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