A

BILL

ΤΟ

Amend the Law relating to the Confirmation, Liabilities, A.D. 1877. and Powers of Gratuitous Executors in Scotland.

THEREAS it is desirable to increase the facilities for expeding
confirmations and administering executries in Scotland:

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, 5 and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. This Act shall extend to Scotland only, and may be cited as Extent and "The Executry (Scotland) Amendment Act, 1877."

Title of Act.

When whole

estate does

not exceed 2007. sheriff

or commis

sary clerk to

ventory, &c.

2. When the whole real and personal estate and effects of a 10 testate shall not exceed in value two hundred pounds sterling, the testate sheriff clerk of the county, or the commissary clerk of the commissariot, within which such testate was domiciled at the time of death, or the clerk of the commissary court of Edinburgh, on production of the will or other writing of such testate, shall prepare prepare in15 and fill up an inventory of the personal estate and effects of such and expede testate and relative oath as nearly as may be in the form of confirmation on applicaSchedule A., and on such oath being duly taken by the executor- tion of exnominate, special or general disponee, or special or universal or ecutor-nomiresiduary legatee, the said clerk shall record the said inventory, 20 and also the will or other writing, but that only if it has not been Form of inventory. previously registered as herein-after mentioned, and shall expede and deliver to such executor-nominate, special or general disponee Form of or special or universal or residuary legatee a confirmation as nearly as may be in the form of Schedule B.

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nate, &c.

confirmation.

intestate

3. When the whole real and personal estate and effects of an When whole intestate shall not exceed in value two hundred pounds sterling, estate does the sheriff clerk of the county, or the commissary clerk of the not exceed commissariot, within which such intestate was domiciled at the 2007., sheriff time of death, or the clerk of the commissary court of Edinburgh, sary clerk

or commis

A.D. 1877.

to prepare inventory, &c., and

expede confirmation on application of next of kin, &c. Form of inventory.

Form of confirmation.

Effect of confirmation.

value of

on the application of the widow, parent, children, or other next of kin,
creditor, or any other person interested in the estate of such intestate,
shall prepare and fill up an inventory of the personal estate of such
intestate and relative oath as nearly as may be in the form of
Schedule C., and on such oath being duly taken and caution found 5
by the applicant to the satisfaction of the sheriff or commissary,
with or without publication of any petition for restriction of caution
as he may see cause, the said clerk shall record said inventory, and
expede and deliver to the applicant a confirmation as nearly as may
be in the form of Schedule D.

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4. The said confirmations respectively shall have the same force and effect as those prescribed in Schedules E. and D. annexed to the Act of the 21st and 22nd Vict., chapter 56. When they contain English or Irish estates the registrars of any probate court in England or Ireland shall affix the seal of said court thereto on the 15 application of the sheriff or commissary clerk, and the payment of a fee not exceeding two shillings and sixpence.

Clerks must 5. The sheriff or commissary clerk shall not proceed with the satisfy them confirmation until he has reason to believe that the true value of selves of the whole real and personal estate and effects of which the testate 20 estate and of or intestate died possessed does not exceed two hundred pounds character or sterling; and if he is not satisfied with the proof of the character relationship or relationship of the person applying for confirmation, or if there of applicant. is a competition for the office of executor, he shall report the same to the sheriff or commissary whose decision shall be final.

proof of

Before whom

taken.

6. Oaths and affirmations under this Act may be taken either oaths may be before the sheriff or commissary, the sheriff or commissary clerk, any commissioner appointed by the sheriff or commissary, any notary public, magistrate, or justice of the peace within the United Kingdom or the colonies, or any British consul.

Procedure and fees.

Stamp duty on estates not exceed ing 2007. abolished,

and under 450l. modified.

7. Any rules and orders and tables of fees requisite for carrying this Act into operation shall be framed, and may from time to time be altered by the Court of Session by Act of Sederunt, but the total amount to be charged shall not in any case exceed the sums mentioned in Schedule E.

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30

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8. No stamp duty shall be chargeable on any inventory when the whole personal estate and effects shall be sworn not to exceed and shall not actually exceed in value two hundred pounds sterling; but the duty chargeable on testate estates above two hundred pounds and under three hundred pounds, and above three hundred pounds 40 and under four hundred and fifty pounds, shall be three pounds and

five pounds respectively, and the duty chargeable on intestate A.D. 1877. estates of similar values shall be five pounds and eight pounds respectively.

Registration

session, &c.

9. The registration of any will or other writing in the books of of will in 5 council and session, or in those of any sheriff court, or in the books of general or appropriate burgli register of sasines, shall, for the supersedes purpose of confirmation, be equivalent to its registration in the registration books of the court in which confirmation is afterwards expede, and shall supersede the recording in the books of that court of such will 10 or other writing, or of the official extract thereof.

in books of

court in
which con-

firmation
expede.

10. The provision of the Act 4 George IV., c. 98, entitled "An Caution not Act for the better granting of confirmations in Scotland," that required by disponees or Caution shall not require to be found by executors nominate shall legatees. henceforth be applicable to and include special and general disponees 15 and special and universal or residuary legatees.

included in

executors.

11. The appointment of gratuitous executors, whether original Provisions or assumed, shall be held to include the following provisions, appointment unless the contrary be expressed, that is to say that the majority of gratuitous acting shall be a quorum; that the whole or quorum or an only 20 executor may assume new executors; that an executor may resign; that executors may discharge any of their number who have resigned and the representatives of those who have died; that executors may compromise or submit and refer all claims connected with the executry, and without the authority of a decree pay such 25 debts as they are satisfied are proper debts against the executry; that executors shall not be liable for omissions, and that each shall be liable for his own acts and intromissions only and not for those of his co-executors.

Forms of
their resig-
nation and

12. The resignation and assumption of gratuitous executors shall 30 as nearly as possible be in the forms authorised by the tenth and eleventh sections of "The Trusts (Scotland) Act, 1867," and relative assumption. schedules for the resignation and assumption of "gratuitous trustees."

curred before

13. Nothing contained in this Act shall affect the liability Liability in35 incurred by any gratuitous executors prior to the date of any resignation resignation or assumption under the provisions hereof nor any not affected. action at law commenced before the passing hereof.

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14. A " gratuitous executor" shall, for the purposes of this Act, Definition of mean and include not only all executors who are not entitled as such to remuneration for their services, but also all executors, whether original or assumed, who are entitled to receive any legacy,

"gratuitous
executor."

A.D. 1877. bequest, or annuity: Provided always, that no executor to whom any legacy, bequest, or annuity is expressly given on condition of the recipient thereof accepting the office of executor shall be entitled to resign the office of executor by virtue of this Act, unless otherwise expressly declared in the deed or other writing under 5 which he is appointed.

Interpreta

tion of terms.

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15. The words "sheriff," "commissary," "sheriff clerk," and commissary clerk " include their respective substitutes or deputes.

SCHEDULES.

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I. TESTATE ESTATES.

SCHEDULE A. S. 2.

Form of Inventory and Relative Oath.

Inventory of the personal estate and effects wheresoever situated of A.B. [design deceased], who died testate, on the

day of

time of death had his [or her] ordinary or principal domicile in the county of A.

2. Household furniture and other effects in the house
conform to inventory and valuation by

3. Stock-in-trade and other effects belonging to deceased

II. England.

policy of insurance on life of de-
A.B. insurance company, num-

[Add under Scotland or England any other estate in usual form.]

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day of

Appeared C.D. [design deponent], who being solemnly sworn and examined depones: That the said A.B. [repeat designation] died

A.D. 1877.