Orr Ewing and Others v Orr Ewing’s Trustees: HL 24 Jul 1885

A domiciled Scotsman died leaving a trust-disposition and settlement executed in Scottish form disposing of his personal property, which was of great amount, and was situated in Scotland, except about one-sixteenth which was in England. He appointed six trustees and executors, all Scotsmen, and four of whom were domiciled in Scotland and two in England. None of the purposes of the trust fell to be performed out of Scotland. The trustees gave up an inventory and obtained from the Commissary of the county in which the deceased died domiciled decree of confirmation under sec. 9 of the Confirmation and Probate Act 1858, and had this confirmation sealed with the seal of the English Court of Probate under section 12 of the same Act. After the English assets, except a very small part thereof, had been transmitted to Scotland, an administration suit was commenced in the Chancery Division of the High Court of Justice in England against the trustees (three of whom were cited in England and three in Scotland) at the instance of an infant residing in England who was one of the residuary legatees, suing by his next friend. The trustees appeared and objected to the estate being administered in England, but ultimately the High Court of Justice and the House of Lords on appeal decided that an administration order should be made, and that complete accounts and inquiries should be taken and made in England. Thereafter the Court of Session, in an action at the instance of the residuary legatees (other than the infant plaintiff) against the trustees, granted a decree of declarator that the trustees were bound to administer the estate according to the law of Scotland, and subject to the jurisdiction of the Scottish Courts alone, and were not entitled to place the funds in the hands of or render accounts to any Court furth of Scotland, and also sequestrated the estate and appointed a judicial factor suspending the action of the trustees in the meantime, and interdicted the trustees, until the estate should be fully vested in the judicial factor, removing the estate or any part thereof, or any writs belonging thereto, out of the jurisdiction of the Scottish Courts.
Held that the declaratory portion of the judgment ought to be reversed, because (1) the trust-disposition and settlement did not contemplate that the investment and administration of the estate must necessarily be in Scotland; (2) while the succession to the estate of a person deceased must be according to the law of his domicile, the forum in which the rights resulting therefrom must be vindicated is’ not necessarily the Court of that domicile (the dictum of Lord Westbury to that effect in Enohin v. Wylie, 10 Clark, House of Lords Cases, 1, being disapproved); (3) the decisions of the Scottish Courts show that the Courts of Scotland will when necessary sustain their jurisdiction over the parties administering a foreign will when they are resident within Scotland, or the estate they are administering is within Scotland, though the Courts of Scotland will only exercise that jurisdiction when an accounting cannot be obtained in the more convenient forum; (4) because the terms of Art. 19 of the Treaty of Union relied on in the Court of Session did not apply; (5) because the Confirmation and Probate Act 1858 relied on in the Court of Session has no bearing on a question of jurisdiction.
But (II.) held that the sequestration of the trust-estate and appointment of a judicial factor – having been ordered by the Court of Session in the exercise of its own independent jurisdiction unaffected by the decision of the House of Lords in the English appeal, and in order that the administration of the estate should proceed in the proper and convenient forum, were right and ought to be supported.


Earl of Selborne, Lords Blackburn, Watson, and Fitzgerald


[1885] UKHL 911, 22 SLR 911





Wills and Probate

Updated: 04 July 2022; Ref: scu.637755