Orr Ewing's Trustees v Orr Ewing
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1885 |
| Date | 24 July 1885 |
| Docket Number | No. 1. |
| Court | House of Lords |
Ld. Chancellor (Selborne), Lord Blackburn, Lord Watson, Ld. Fitzgerald.
JurisdictionForeignExecutorTrust funds partly in Scotland partly in EnglandOrder of English Court on Scottish executors confirmed in ScotlandConfirmation and Probate Act, 1858 (21 and 22 Vict. chap. 56), sec. 12Treaty of Union, 1706 (6 Anne, chap. 11), Article 19.
AppealCompetency48 Geo. III. c. 151, sec. 15.
A Scotsman, domiciled in Scotland, died possessed of large personal property, of which fifteen-sixteenths were locally situated in Scotland, and one-sixteenth in England. By his trust-disposition and settlement he appointed six trustees and executors, all Scotsmen, but of whom two were domiciled in England, the rest in Scotland. The bulk of the property fell into residue, and was divisible among six of the testator's nephews. There were no creditors of the trust in England, and none of the purposes fell to be performed out of Scotland.
The trustees having presented, in the Commissary Court of Dumbartonshire, an inventory of the personal estate, including both the English and Scottish moveables, obtained confirmation from the Commissary in terms of section 9 of the Confirmation and Probate Act, 1858; and after having the confirmation sealed with the seal of the Probate Court in England, in terms of section 12 of the same Act, proceeded to bring the English assets into Scotland, and to administer the trust there.
When the English assets, with a small exception, had been removed to Scotland, an administration suit was instituted against the trustees (three of whom were cited in England, and three in Scotland) in the Chancery Division of the High Court of Justice in England, and was carried on at the instance of an infant, one of the residuary legatees, and of his next friend, in which the plaintiffs alleged a devastavit. The trustees appeared in the suit, and the Court granted an administration decree for the execution of the trusts of the will, and for ordinary accounts, and inquiries as to the whole estate.
While an appeal by the trustees against this decree, on the ground of want of jurisdiction, was pending in the House of Lords (where, subsequently, the decree was affirmed), the remaining residuary legatees raised an action in the Court of Session against the trustees, concluding (1) for declarator that they were bound to administer and dispose of the whole estates, &c., according to the law of Scotland, and under the authority, and subject to the jurisdiction, of the Scottish Courts alone; that they were not entitled to place the same under the direction of any Court furth of Scotland, to render accounts thereof to, or to deposit the title-deeds, writs, or evidents thereof in the custody of any such Court, but were bound to account therefor, whenever legally called on to do so, in Scotland, and subject to the jurisdiction of the Scottish Courts alone; and (2) for interdict against the trustees removing the estate, title-deeds, &c., beyond the jurisdiction of the Scottish Courts, or rendering accounts of the estate, or otherwise placing the administration thereof under the control of any Court furth of Scotland; or alternatively to the conclusion for interdict, for the removal of the trustees, sequestration of the estate, and the appointment of a judicial factor thereon, and for interdict against the trustees removing the estate, title-deeds, &c., until the estate should be fully vested in the judicial factor.
The trustees, in defending the action, maintained that the decision of the House of Lords in the administration suit was binding on the Court of Session, and virtually decided the question, and that, in any view, the order was not contrary to the principles of international law, or the practice of the Scottish Courts, or in contravention of the Treaty of Union.
The Court granted decree in terms of the declaratory conclusions of the summons, sequestrated the estate, appointed a judicial factor thereon, suspended till further orders all action by the trustees in the administration or disposal of the estate, and, further, granted the interim interdict craved.
In an appeal, held (1) (rev. judgment of the First Division) that the declaratory conclusions could not be sustained, in respect 1. that there was nothing in the trust-deed restricting the trustees in their investments or management to Scotland; 2. that while international law recognised the lex domicilii as regulating the succession to the personal estate of a person deceased, there was no reason why the estate vested according to that law in the successors should in all cases and wherever situate be managed subject to the jurisdiction of the Courts of the country of the domicile, nor why the beneficiaries should be restricted in enforcing their rights to these tribunals; but (2) (aff. judgment of the First Division) 1. that the sequestration of the estate and the appointment of a judicial factor were within the jurisdiction of the Court of Session; and 2. that the Court had in the circumstances and notwithstanding the judgments in the English Courts, rightly made these appointments.
Per Lord Chancellor,The decision of the House in the English case turned upon the doctrine of trusts, and upon the authority of a Court of equity to act in personam against trustees, personally present within and subject to its jurisdiction.
Per Lord Chancellor,There is a difference between the course of the Courts in England and Scotland respectively as to the grounds which are held sufficient for a general judicial administration at the instance either of fiduciaries or of beneficiaries. The Court of Session will not in either case interfere with the administration extra curiam except for some special cause shewn. The English Court, on the other hand, regards the mere exoneration of fiduciaries from the risks and responsibilities of an administration extra curiam, and the better security for the interests of beneficiaries afforded by a judicial administration, as sufficient reasons (generally) for its intervention.
Circumstances in which an appeal was allowed against a unanimous interlocutory judgment of the First Division without leave of the Court.
(In the Court of Session 29th February 1884, 11 R. 600, 7th and 12th March 1884, 11 R. 682. Question of leave to appeal 27th May 1884, reported of date 13th December 1884, 12 R. 343.)
On 5th August 1884 an appeal was presented in name of the trustees to the House of Lords (without leave of the Court of Session) against the interlocutors of 29th February and 7th and 12th March 1884.
The respondents presented a note to the House praying that the appeal might be dismissed in respect it was not accompanied by a certificate of leave to appeal from the Court of Session, and that the appeal was not taken by anyone who was a party to the cause.
On 13th November 1884 the appeal committee dismissed this petition on the ground that in the present case the appeal was not incompetent.
Lord Chancellor.The appellants in this case are trustees under the will of John Orr Ewing, a testator who died on the 15th of April 1878, domiciled in Scotland, and leaving a very large personal estate, estimated at more than 460,000, of which all but 25,000 was in Scotland. The respondents are four of the residuary legatees under the will. When the Scottish suit, out of which this appeal arises, and in which the respondents are pursuers and the appellants are defenders, was commenced (the 5th of July 1883), another suit was already pending in England, in which Malcolm Hart Orr Ewing, another of the residuary legatees (an infant suing by his next friend), was plaintiff and the appellants were defendants; and in which the respondents (though not defendants on the record) had, for the protection of their own interests, intervened. A decree had been made in that suit, for a general administration of the testator's estate under the direction of the Chancery Division of the English High Court of Justice, by the Court of Appeal, on the 29th of November 1882. The infant plaintiff was resident in England, and it had been found, upon inquiry by the English Court, that the prosecution of that suit would be for his benefit. Of the defendants, the trustees, two were permanently and one occasionally resident in England. These three were all served with the process of the English Court, while personally within its jurisdiction. The other three ordinarily resided in Scotland, and were there served according to the rules of procedure of the English Court. They appeared to and joined in defending the suit, without raising any question as to the propriety of that service.
From the English decree of the 29th of November 1882 there was an appeal by the defendants, the trustees (now also appellants here), to your Lordships' House. They submitted that the English Court had no jurisdiction in the case, and that, if there was jurisdiction, it ought not to have been exercised. Your Lordships were of a contrary opinion, and dismissed the appeal; and it cannot, in my opinion, admit of any doubt that your Lordships' adjudication on that appeal is now absolutely conclusive upon both the points so raised. Nor is it correct to represent the question of jurisdiction, then determined, as depending upon the mere procedure and practice of the English Court without reference to general principles; though the other question, whether the jurisdiction had been rightly exercised, undoubtedly did so. I will not repeat what was then said, though to all that I myself said, after carefully reconsidering it, I adhere. That decision turned upon the doctrine of trusts, and upon the authority of a Court of equity to act in personam against trustees, personally present within and subject to its jurisdiction, whatever may be the situs of the subject-matter of the trust, or the domicile of any deceased person by whom (whether by deed inter vivos or by...
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