Hutcheson & Company 's Administrator v Taylor's Executrix
| Jurisdiction | Scotland |
| Judgment Date | 05 March 1931 |
| Docket Number | No. 53. |
| Date | 05 March 1931 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Moncrieff.
Executor—Duties and liabilities—Liability to creditors—Liability of executor of deceased executor to account for latter's intromissions.
An action was brought, on behalf of creditors, against the executrix-nominate of a deceased debtor, concluding for an accounting in respect of her intromissions with his estate both as his executrix and as his universal legatee. The defender having died during the dependence of the process, the action was transferred against her daughter, as her executrix. It was not alleged, however, that the daughter had received any portion of the debtor's estate or had intromitted with it.
Held that the daughter, as executrix of her mother, was under no obligation to account for the latter's intromissions, either as executrix or as universal legatee, with the debtor's estate; and absolvitor granted.
Observations per Lord Morison on the remedies available to the creditors of a deceased person whose executor has also died.
On 14th November 1928 Eugenio Candido de Sa Braga (Judicial Administrator of Bankruptcies attached to the Commercial Court of Oporto, and administrator of the bankrupt estates of the firm of Hutcheson & Company, having its head office in Portugal, and of the deceased Alexander Davidson Taylor, a partner of the said firm), and the attorneys and mandataries of the said Eugenio Candido de Sa Braga, brought an action against Mrs Anne Taylor, mother of the said Alexander Davidson Taylor, as his executrix-nominate and sole legatee and also as an individual, concluding for an accounting of her intromissions as executrix-nominate and as an individual with the estate of the said Alexander Davidson Taylor. Mrs Anne Taylor having died on 16th March 1930 during the dependence of the process, the action was thereafter transferred against her daughter, Miss Catherine Linklater Taylor, as the executrix-nominate and trustee of her mother.
The following narrative of the facts of the case, as disclosed by the parties' averments, is taken from the opinion of the Lord Ordinary (Moncrieff);—"The late Alexander Davidson Taylor, who died on 25th April 1925, was at the time of his death a partner in a mercantile firm which, under the style of Hutcheson & Co., carried on business in Portugal. It is not disputed by the defender that the firm and the individual partners thereof were, during the subsistence of the firm, subject to the law of Portugal. The copartnery was constituted by deed, dated 19th December 1919, which was registered in the Books of the Commercial Registrar of the Judicial District of Oporto. The deed provides that, in the events which happened, the copartnery should be dissolved by the death of the said Alexander Davidson Taylor. Dissolution of the partnership was not, however, registered at Oporto. Nevertheless, the dissolution of the partnership was regarded and treated as effectual inter socios, and the surviving partner made substantial payments to the executrix of his deceased partner, Mr Taylor, to account of his interest under the contract of copartnery. The parties are in dispute as to the amount of the total of the payments which were so made. [The pursuer averred that the whole estate of her son ingathered by Mrs Taylor, his executrix, amounted to £60,487, 6s. 2d., while the defender averred that the net sum received by Mrs Taylor was only £19,151.] Following on the death of Mr Taylor, the surviving partner continued to carry on the business of the firm in Portugal, either as sole partner of the firm or in association with other partners whom he assumed. In the course of this subsequent trading the firm incurred serious financial losses, and on 11th July 1927 (more than two years after Mr Taylor's death), an order was pronounced, on the application of creditors, in the Court of Oporto, declaring the bankruptcy of the firm and also of the individual partners thereof, being the surviving partner and Mr Alexander Davidson Taylor, as represented by his mother, who had been appointed his executrix and sole legatee. The deficiency of the assets of the firm as compared with its liabilities is stated by the pursuer to have amounted to more than £35,000.
"The pursuer is the Judicial Administrator in Bankruptcy, appointed by the Commercial Court of Oporto, of the bankrupt estates of the said firm of Hutcheson & Co., and also of the estate of the said Mr Taylor as a partner of the firm. The pursuer's appointment, which was made on 11th July 1927, was confirmed by the Supreme Court of Justice at Lisbon on 18th June 1929. The pursuer avers that, under the law of Portugal, the dissolution of the firm, which in terms of the contract of copartnery took effect as between the partners upon the death of Mr Taylor, was not effective...
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