Graham v Graham's Trustees

JurisdictionScotland
Judgment Date15 October 1901
Date15 October 1901
Docket NumberNo. 1.
CourtCourt of Session
Court of Session
1st Division

Lord President, Lord M'Laren, Lord Adam, Lord Kinnear.

No. 1.
Graham
and
Graham's Trustees.

Process—Mandatary—Soldier on Foreign Service.—

Circumstances in which the Court refused to ordain the pursuer of an action who was a soldier on foreign service to sist a mandatary.

Peter Macpherson Graham, gunner in the 15th Company of the Royal Artillery, and on service with the Northern Field Force in China, raised an action in the Sheriff Court at Glasgow against the trustees under the trust-disposition and settlement of his father, Alexander Graham, formerly a wine and spirit merchant in Glasgow, who had died domiciled in Scotland, and leaving estate situated exclusively in Scotland.

The action concluded for production of an account by the trustees of their intromissions with the moveable estate of the deceased, and for payment of the amount which should be ascertained as the pursuer's share of the estate.

The defenders admitted that the pursuer was entitled to one-sixth of the legitim fund, if any, under a provision of the settlement by which the trustees were directed to pay him his legitim.

In the inventory lodged by the trustees, and in a statement furnished by their agent to the pursuer, the free moveable estate was brought out at £845, 17s. 1d., and the legitim fund at one-half of this sum, £422, 18s. 6d., one-sixth share of which would amount to £70, 9s. 9d. But in their answers to the pursuer's condescendence the defenders stated that this estimate of the moveable estate was inaccurate, as it was based on the assumption that the goodwill of certain licensed premises of which the deceased was tenant, and which formed the chief asset, was moveable. They averred ‘that there was no free estate available apart from the goodwill of the businesses for the pursuer's legitim,’ and pleaded,—‘2. The pursuer having no interest in the goodwills, which follow the leases, and there being no estate otherwise available for legitim, the defenders should be assoilzied.’

On 6th July 1901, the Sheriff-substitute (Boyd) pronounced this interlocutor:—Finds that the goodwills of the premises cannot be regarded as forming part of the moveable estate of the deceased: Therefore, so far sustains the defences, and assoilzies the defenders from this claim, and decerns: Quoad ultra allows a proof, and sends the case to the Diet Roll of the 19th inst.’

The pursuer appealed.

In the Single Bills the defenders moved the Court to ordain the pursuer to...

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