PRESTON v. VISCOUNT MELVILLE. [2] personal estate in England must be administered there by the administratrix, by virtue of the letters of administration. The law of the domicile of a deceased person governs the succession to his personal estate, wherever situated; but the estate itself must be administered in the country in which possession is taken of it under lawful authority. The Courts in Scotland have no right to appoint persons to administer personal property in England, that power being exclusively vested in the English Ecclesiastical Courts (1); and of that the Scotch Courts are bound to take notice. SIR ROBERT PRESTON, Baronet, a domiciled Scotchman, died at his place of residence in Scotland, *in May, 1834, leaving a trust disposition, deed of settlement and will, by which he granted, disponed and made over to and in favour of Sir Coutts Trotter, Baronet, Edward Majoribanks, Esq., and Sir Edmund Antrobus, Baronet, bankers in London, and to the survivors and survivor of them and their assigns, and the assigns of the survivor, in trust for the uses, ends and purposes therein particularly declared, all his lands, heritages, tiends, fishings, tenements, and other heritable or real estate of whatever description; and all property and estate whatsoever or of whatever denomination, then belonging, or that might belong to him at the time of his death, wherever situated, in Scotland, England, or elsewhere; and also all debts and sums of money due or belonging to him at his death, heritable or moveable, real or personal, wherever and in whatever way secured; and also all personal estate and effects of whatever nature, quality or denomination, with the title deeds of the heritable subjects and the vouchers of the debts: surrogating and by the trust disposition, &c. substituting the said trustees in his full right and place of the premises, with power to them to do whatever he could have done before granting thereof, and binding himself and his heirs to make up complete titles to the lands, heritages and heritable debts thereby disponed, if necessary, and to convey the same in all form to the said trustees, for the purposes therein mentioned: and he appointed the said Sir Coutts Trotter, E. Majoribanks, and Sir E. Antrobus, and the survivors and survivor of them, to be sole and only executors or executor of his said will, and intromitters and intromitter with his estate and effects falling under executry, thereby empowering them to expede confirmations and letters of (1) This jurisdiction has been transferred to existing Courts by the Court of Probate Act, 1857 (20 & 21 Vict. c. 77), s. 4, the Court of Probate Act, 1858 (21 & 22 Vict. c. 95), s. 10, and the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 16.-R. C. *administration in due form, secluding from the said office all others his nearest of kin; declaring that if an inventory of the debts due, and personal estate belonging to him, should be made up and signed by him as relative thereto, the same should supersede confirmation in Scotland, or administration in England, being thus to be held as a special conveyance, and to be valid to every intent and purpose; but always under the conditions, and for the ends, uses, trusts and purposes therein underwritten. The trust deed contained various directions to the trustees and executors relative to the management and disposition of Sir Robert's large heritable estates and personal property. The former were situated in Scotland; the personal property, which also was of large amount, was partly vested in Scotland, and partly in England in Government securities and Bank of England stock. The immediate objects of the trust were his three nieces: viz., the appellant; her sister, Miss Catherine Preston; and Dame Anne Hay, wife of Sir John Hay, Baronet: to whom the trustees were to pay annually, in equal shares, the surplus yearly rents and proceeds of the whole property (after payment of debts and certain legacies and annuities), with benefit of survivorship between them; and Sir John Hay was to be entitled to the interest of his wife, in the event of his surviving her. All the persons named in the deed as trustees and executors having declined to accept the trust, letters of administration with the deed and will annexed were, on the 18th of July, 1834, granted by the Prerogative Court of Canterbury, as to the personal property in England, to the appellant, as one of the next of kin of the testator, the other two nieces and next of kin, and Sir John Hay, consenting, and becoming *sureties for her. Confirmation was also expede in the proper Commissary Court in Scotland, on the 21st of November following, in favour of the appellant, as to the personal estate and effects there situated; and about the same time she completed feudal titles, as heiress of entail, to certain portions of the heritable estates (Sir Robert Preston having made entails of these portions after executing the trust deed, by virtue of powers therein reserved). The letters of administration and confirmation. were obtained for the purpose of interim administration, without any intention of superseding the trust disposition and will. Accordingly proceedings were soon afterwards taken for the appointment, by the Court of Session in Scotland, of new trustees in the place of the testator's nominees; and-after some correspondence between PRESTON v. VISCOUNT MELVILLE. [ 3 ] [*4.] PRESTON v. VISCOUNT MELVILLE. [5] the agents of the three ladies, and of Mr. Dashwood Bruce, the Honourable James Bruce, and Lord Meadowbank, who were also interested in the testator's succession, under the trust disposition, and who, as well as Lady Hay and her husband, severally petitioned the Court for the appointment of proper persons to be trustees— the three respondents were, with the consent of all the parties, judicially appointed, on the 19th of May, 1835, to be "trustees for executing and carrying into effect the powers and provisions in the said trust disposition, deed of settlement, and will, in the place of the trustees named therein, who had declined to act, with all the powers and faculties conferred on the said original trustees by the said trust deed." To the respondents, so appointed, the appellant, by deed dated the 16th of November, 1835, assigned all the personal estate and effects which belonged to Sir Robert Preston in Scotland, and to which she had, as aforesaid, expede confirmation in the Consistorial Court there. Differences subsequently arose between the appellant and respondents respecting the title to the entailed estates in Scotland, to which the appellant had completed titles as heiress of entail. The result was, that she not only intimated to the respondents her intention to resist their completing their feudal titles to those estates, but also refused to transfer to them the personal property vested in the English funds and securities, until she should obtain a judicial discharge from her administration by means of a suit in the Court of Chancery. She had then entered upon the administration of that part of the testator's estate, and paid thereout several legacies bequeathed by him. The respondents filed a bill against the appellant in the Court of Exchequer in England, in January, 1836, for the purpose of getting her accounts as administratrix passed, and of getting her discharged from her intromissions with the English personal estate, in order that the residue of that estate might be transferred to them; whereupon the appellant filed a bill against the respondents and others in the Court of Chancery in England, praying that the English property might be administered under the direction of that Court, and might, for that purpose, be transferred to the Accountant-General. In March, 1836, after the filing of the latter bill, the respondents brought two actions in the Court of Session in Scotland, against the appellant. The summons in the first of them, out of which this appeal arose, after narrating the trust deed, and the proceedings ť. VISCOUNT MELVILLE. [ *6] that were taken by the parties, to the effect before stated, con- PRESTON cluded for a declarator "that all property and estate *whatsoever, which belonged to the deceased Sir Robert Preston at the time of his death, wherever situated, in England, Scotland, or elsewhere; and also all debts and sums of money due or belonging to him at the time of his death, heritable or moveable, real or personal, wherever and in whatever way secured; as also all personal estate and effects of whatever nature, quality or denomination, with the whole writs and title deeds of the said heritable subjects, and the vouchers and instructions of the said debts, and in particular the whole funds and effects of the said deceased held by Dame Anne Campbell Baird Preston under the foresaid letters of administration granted to her by the Prerogative Court of the Archbishop of Canterbury; now pertain and belong, and be vested in and transferred to the pursuers, as trustees nominated for executing the settlements of the said deceased Sir Robert Preston, in place of Sir Coutts Trotter, E. Majoribanks, and Sir E. Antrobus, but in trust always for the uses, ends and purposes specified in the foresaid trust disposition, deed of settlement, and will; and that the whole rights, powers, &c. thereby vested in and bestowed upon the persons therein named, are now vested in and bestowed upon the pursuers, as trustees so nominated; and in particular, that their receipts or discharges are good and effectual to all concerned, transacting with the pursuers as trustees; so that the receipts and discharges to be granted by them to the defender, on her paying and transferring the aforesaid funds and effects, will be a valid and sufficient discharge and exoneration to her of her whole intromissions with the same: And it being so found and declared, the said Dame Anne Campbell Baird Preston ought and should be decerned and ordained forthwith to pay, transfer and make over to the pursuers, as trustees aforesaid, the funded and other property before mentioned (viz., 32,000l. Three per cent. Consols; 59,8697. Three-and-a-half per cents. ; 28,3501. Three per cents.; 11,620. stock of the Bank of England, &c.), and all other property which the said defender holds as administratrix of Sir Robert Preston's will." The appellant, on receiving notice of this action, amended her bill in Chancery by adding a statement thereof, and praying an injunction to restrain the pursuers from proceeding therewith. The respondents at the same time dropped their bill in the Exchequer, and filed one with the same object in the Court of Chancery. No proceedings were taken in any of these equity suits. [ 7 ] PRESTON v. VISCOUNT MELVILLE. [ 8 ] The appellant put in a defence to the action in the Court of Session, denying that Court's jurisdiction to control her intromissions with the funds situated in England, and vested in her under a title derived to her from a competent Court there; to which alone she, in the character of administratrix was accountable. She also pleaded the suits pending in the Court of Chancery, and insisted that they would determine all the questions between her and the other parties to those suits; that the Court of Session had appointed the respondents to be trustees of the testator's property situated in Scotland, but could not, and in fact did not, constitute them executors or administrators of the property in England, which had been put in the course of due administration, by the proper ecclesiastical authority there, before the appointment of the respondents by the Court of Session. After the usual course of proceedings by condescendence and answers, and revised cases, the Lords of the First Division of the Court of Session, by an interlocutor pronounced on the 10th of February, 1838, found and declared in the terms of the first conclusion of the libel (1), and decerned; and to that extent allowed an interim extract to go out, superseding the consideration of the other conclusions of the libel, and of the question of costs (2). That interlocutor is the subject of this appeal. Mr. Pemberton and Sir William Follett (Mr. J. Stuart was with them), for the appellants: The judgment of the Court of Session is in any view of it erroneous; because, finding and declaring in the terms of the first conclusion of the summons, it in effect, therefore, finds and declares that "the whole rights, powers, faculties and privileges vested in (1) Vide supra, pp. 4, 5. (2) 16 Shaw & Dunlop, 472. The only reasons given by the Court for the interlocutor were the following observations by Lord GILLIES, set out in the appellant's printed case: "I think, with regard to the succession in England, that payment of it to those trustees should have been ordered; for the trust gives just as great powers of disposing of the personal properties of the trustee as of his heritable estates: and it makes no difference whether that personal property is situated in France or in Turkey, for it is just as if it were in Scotland. I have no wish to interfere with the Court of Chancery, though I am quite certain that they would have ordered payment in similar circumstances. Perhaps our best plan would be to adopt some course which may secure all the rights of parties, without interfering with that Court, and superseding until we see what arrangement can be made with it. I think a decerniture in terms of the declaratory conclusion will be enough at present, superseding a further personal decerniture till another period." |