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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomas Steel and Others, Petitioners [1873] ScotLR 11_160 (7 January 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0160.html Cite as: [1873] ScotLR 11_160, [1873] SLR 11_160 |
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Page: 160↓
Application for a judicial factor on the estate of a man whose son and heir left the country twenty-three years ago, and had not been heard of for sixteen years, but who had, before leaving, appointed factors and commissioners to act for him, refused.
The petitioners applied for the appointment of a judicial factor on the estate of the deceased James Steel, who died in January 1873. The deceased was survived by his widow. He had had only one child, a son, who left this country in 1850, and had not been heard of for 16 years. The petitioners believed that he was now dead; and if he was, they were entitled to succeed to the whole of the deceased's estate except that portion of it to which his widow was entitled. If, on the other hand, he
Page: 161↓
was still alive, the petitioners had no interest in the estate. Answers were lodged for Messrs Robert Young and William French, in whose favour the deceased's son had, before leaving this country, executed a formal deed of factory and commission. They, and also the widow, opposed the appointment of a judicial factor, on the ground that there was a legal presumption that the deceased's son was still alive, and that, as he had made provision for the management of his property in his absence, there was no ground for the intervention of the Court.
After discussion, the Lord Ordinary pronounced the following interlocutor, which was acquiesced in by the petitioners:—
“ Edinburgh, 12 th December 1873,—The Lord Ordinary having considered the cause, refuses the prayer of the petition, and decerns: Finds the respondents entitled to expenses: Allows an account thereof to be given in, and remits the same when lodged to the auditor to tax and to report.
Note.—The late James Steel died intestate on 30th January last. His only child, James Steel junior, went to sea in 1850, about the age of 17 or 18, and before leaving this country executed a factory and commission in favour of the respondents, Mr Young and Mr French, giving them ample powers to manage his affairs in his absence, and power in particular to make up titles to any property, heritable or moveable, to which he might succeed during his absence. The last communication received from him was a letter dated in July 1857, addressed to his mother, in which he spoke of deserting the whaling ship in which he was engaged, having a great distaste for the employment, and from the letter, No. 15 of process, it appears that he did desert the ship in March of that year. Mr Young and Mr French, as factors and commissioners for James Steel junior, propose to enter on the administration of the estate of his father, but the petitioners—a brother and three nephews, and a niece of the deceased—have applied, by the present petition, to have the estate put under judicial management.
Although upwards of 16 years have elapsed since any communication was received from James Steel junior, the legal presumption is that he is still in life. This being so, the respondents are entitled, by virtue of the factory and commission which they hold, to make up titles in his person to the estate, heritable and moveable, which belonged to his father, and it appears to the Lord Ordinary that more distant relations of the deceased, who can succeed to him only if it shall be shown that his son is dead, are not entitled in the existing circumstances, and in the face of the legal presumption that he is in life, to have the management taken out of the hands of those whom he has appointed his commissioners. These parties will take up the estate for ‘preservation and administration only, and it is not said that there is anything in their peculiar circumstances or position which renders it advisable or expedient that the management of the deceased's estates should not be in their hands. It appears to the Lord Ordinary that, if there had not been any factory and commission in existence, a factor loco absentis to James Steel junior would have been the appointment which should be made in the circumstances, and that the estate of the deceased should, in that view, have been administered by such an officer until at least the legal presumption of James Steel junior being still in life was in some way removed.
At the close of the discussion the Lord Ordinary was disposed to think he might sist proceedings in this application for a time, in order that it might be seen whether the respondents, Mr Young and Mr French, would succeed in making up a title to the estate and enter on its administration, but having formed the opinion that they are entitled to do so, he has come to the conclusion that they are also entitled to have this application refused.”
Counsel for Petitioners— Mr Jameson. Agent— D. J. Macbrair, S.S.C.
Counsel for Respondents— Mr Burnet. Agents— Campbell & Smith, S.S.C.
