A K MACDONALD Vs. AMWILSON

JUDGEMENT

(1.) This is an originating summons taken out by Mrs. Anne Kerr Macdonald, the widow of one Robert Hampton Macdonald, who died at Harrogate, England, in 1922, leaving a will dated 8th March 1920. The testator was domiciled in Scotland, and in the concluding passages of his will he declares that it should be construed and given effect to according to the law of that country. By the will the testator appointed the plaintiff a trustee in conjunction with three other persons, the defendant, Alexander Maurice Wilson, who is described as an advocate residing at Aberdeen, the defendant, Erskine Macdonald Aird residing at Glasgow, and the defendant, Robin Hamption Erskine Aird, described as a tea planter of Rupai Estate, Doom Dooma, Upper Assam. The testator, after directing payment of his debts and funeral expenses, and after giving certain pecuniary legacies, directed the trustees to hold his estate in trust for payment to the plaintiff, should she survive the testator, of the free income of the rest, residue and remainder of his estate, heritable and moveable, during all the days and years of her life. There are directions as to the division and disposition of the estate on the death of the plaintiff. The testator and the plaintiff were residing at Harrogate at the time of his death, and the plaintiff thereafter continued to reside there for some time. The testator's estate comprises a tea garden in Assam known as the Titadimord Tea Estate. Of that estate the defendants, Messrs. Barry & Co., are Managing Agents, but I am told that there is no written managing agency agreement. The fact is that they managed the estate during the testator's lifetime, and have continued so to do after his death. The summons was presented and filed on 20 February of this year, as was also the plaintiff's affidavit in. support.

(2.) The plaintiff states that between 1931 and 1938, her co-trustees have by a majority sanctioned the carrying out of various works upon the Titadimord Tea Estate, which she regards as being in the nature of capital expenditure, and also sold certain machinery being part of the trust property, and purchased new as well as other machinery, and arbitrarily forced her to share in meeting all this expenditure by means of deductions from the income payable under the terms of the trust. She also complains that on various occasions one or other of her co-trustees has visited her while she has been living at Harrogate, and that they have unjustifiably debited their travelling expenses against her income, although the business of the trust did not require them to make the journeys in respect of which the expenses were incurred. She also complains that in 1936 the defendant Robin Hampton Erskine Aird travelled from Assam to Calcutta and met her there on her arrival. She says that the other trustees are now debiting her with Mr. Aird a travelling expenses from Assam, although she did not request him to come to Calcutta to meet her, and indeed had purposely refrained from acquainting him of her proposed visit to India, because she desired to see things for herself. Finally she complains that the defendants, Messrs. Barry & Co., although she has requested them to provide her with an opportunity and all proper facilities for inspection of the accounts of the tea estate, have consistently refused to do so. The summons asks for the decision of the Court on various questions, amongst others, whether the trustees are at liberty to meet capital expenditure upon the trust property so as to impose on the life-renter or tenant for life a diminution of income without her consent or the sanction of the Court, and she asks similar questions with regard to the travelling expenses with which she has been debited. She also asks whether she as beneficiary or trustee is entitled to examine the accounts maintained by the defendants, Messrs. Barry & Co., and whether she is entitled to inspect the tea estate. There is a prayer for a direction on the trustees to furnish full and proper accounts, and a prayer that the trustees and Messrs. Barry & Co., may be directed to give her inspection of the relative books.

(3.) Mr. Issacs appearing for the defendant trustees has urged, first, that the Court has no jurisdiction, and secondly that the summons is not maintainable. With regard to the question of jurisdiction I have come to the conclusion that Mr. Issacs contention is well founded. It is now settled that Ch. 13 of the rules and orders of the original side, which govern the procedure with regard to originating summons, must be read subject to the provisions of 01. 12, Letters Patent, and it follows, that the Court has no jurisdiction to entertain an originating summons unless it would have jurisdiction to make an administration decree with regard to the estate in respect of which relief by originating summons is sought. Accordingly, unless either the cause of action in the hypothetical administration suit can be said to arise wholly within the local limits of the jurisdiction, or in the alternative, unless part of the cause of action arises therein and leave, of the Court is obtained, the originating summons must be dismissed. In this case no leave under Clause 12 was obtained. The definition of "cause of action" as the bundle of facts which the plaintiff must prove in order to succeed is well-known and where it is sought to have the estate of a deceased person administered by the Court in terms of that person's will, the execution of the will and the grant of probate both appear to me to be essential constituents of the bundle.