Scottish Court of Session Decisions

By mutual disposition and settlement, dated 2d March 1852, the Rev. Peter Young and Mrs Maitland M'Culloch or Young, his wife, on the narrative of their having resolved to make a settlement of their affairs by which the longest

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liver of them should have absolute right to the whole property, heritable and moveable, then belonging to them, or that should belong to them, or either of them, on the dissolution of their marriage by the death of one, and that after the death of the survivor, the same, and whatever other property the survivor might die possessed of, should be disposed of as the survivor should direct, conveyed in favour of themselves in conjunct fee and liferent, and to the longest liver of them two, and the heirs, successors, and assignees of the longest liver in fee, the whole heritable and moveable estate then belonging to them, or that should belong to them at the dissolution of their marriage by the death of one of them. The survivor of them was nominated to be the executor of the other, and trustees were appointed, to whom was conveyed in trust the whole estate then belonging or that should belong to the longest liver of the two, and who were nominated executors of the said longest liver. The trustees were directed to implement any instructions which the trusters or survivor of them might at any time give as to the management or disposal of the estate, and power was given them to realise the estates for the trust purposes. Of the same date the trusters executed a letter of instructions, which, after various directions as to legacies, & c., proceeded as follows:—“In the last place, as to whatever residue there may be of our said property after fulfilling the foresaid purposes, we wish and direct it to be divided and disposed of in such way as we or the survivor of us two shall direct by any future writing under our hands, or the hand of the survivor of us two, made at any time, which writing we hereby declare to be, like these presents, part of our said deed or deeds of settlement, and as binding on you our trustees as if it had been engrossed therein, and failing such writing disposing of said residue, then the said residue shall be equally divided among the nearest-in-kin of us both who shall be alive at the time of the death of the survivor of us two—that is to say, one-half to the nearest-in-kin equally amongst them of me the said Peter Young, and the other half to the nearest-in-kin equally amongst them of me the said Maitland M'Culloch or Young, who shall be alive at the time of the death of the survivor of us two.”

Mrs Young died in March 1853. Her husband after her death executed at different dates various codicils altering and increasing legacies already left and adding new ones. He died on 28th September 1864. The trustees having paid the various legacies, &c., and difficulties having occurred as to the terms of the residuary clause, they raised an action of multiplepoinding and exoneration. There was no dispute as to the share of residue falling to the nearest-in-kin to Mr Young, but competing claims were lodged for parties claiming to be next-of-kin to Mrs Young.

Mr and Mrs Young had no issue. Mrs Young had three brothers and two sisters, who all predeceased her, the brothers dying unmarried. Of the sisters, Mary married Dr M'Adam, and died in 1841, leaving issue Robert John M'Adam, who died intestate at Montreal on 4th February 1869, his widow dying shortly after. They left issue (1) Elizabeth M'Adam or Wells, who and her husband died in 1872 leaving three children; (2) Margaret M'Adam or Delbridge; (3) Mary M'Adam or Wells. One set of claimants in this action were the children of Elizabeth Wells (represented by their tutor Mr W. D. B. Janes), Margaret Delbridge, and Mary Wells. They claimed one-half of the residue of the trust-estate as next-of-kin to Mrs Young, of which one-ninth was to go to each of the children of Elizabeth Wells, one-third to Mrs Delbridge, and one-third to Mrs Mary Wells. They pleaded—“(2) On the death of Peter Young the right to one-half of the residue of the trust-estate vested, in terms of the settlement, in Robert John M'Adam, as nearest-of-kin of Mrs Young.”

Mrs Young's other sister, Joan, married Joseph Thackwray, and had five children, of whom three predeceased the said Peter Young unmarried, and two others, James and Thomas, predeceased him leaving issue. James died in 1860, leaving a widow and three children, for whom, however, no claim was lodged in this action. Thomas died in 1858 leaving seven children, and survived also by the issue of a deceased son William. A claim was lodged for the children and grandchildren of Thomas Thackwray. The children of Thomas Thackwray claimed to be ranked and preferred each to a share of the residue in question, equally with any other party or parties establishing as near a relationship as themselves or their father to the said Mrs Young; and the children of William Thackwray, as representing their father, claimed the share which was payable to him.

The Lord Ordinary ( Lee) pronounced an interlocutor in which he found “that the one-half of the residue destined to the nearest-in-kin of the said Peter Young has been already disposed of in this process, and that according to the sound construction of the said mutual disposition and settlement, the other half, destined to the nearest-in-kin of the said Mrs Maitland M'Culloch or Young alive at the time of the death of the said Peter Young, is payable to the heirs in mobilibus as at that date entitled to succeed ab intestato to the said Mrs Maitland M'Culloch or Young, including not only the said Robert John M'Adam, who died at Montreal on 4th February 1869, but also the children of Mrs Young's deceased nephew Thomas Thackwray, as coming in place of their father, and also the children of any other nephew or nephews of Mrs Young who may have survived her but predeceased her said husband; and appoints the case to be enrolled for the purpose of hearing parties as to the effect of this interlocutor.”

His Lordship added the following note—“Apart from the authorities on the subject, the Lord Ordinary might have had difficulty in admitting among the nearest in kindred of Mrs Young, along with her nephew John Robert M'Adam, the children of a nephew who predeceased the prescribed period of distribution. He should have been disposed to regard ‘nearest-in-kin’ (an expression frequently used as synonymous with next-of-kin, e.g., Bell's Prin., section 1861) as pointing to propinquity in degree as well as to the order of succession provided by the common law of Scotland; and he should have thought it questionable whether a statutory provision applicable to cases of intestate succession could be applied to the interpretation of such a term in a mutual settlement which was made before the statute was passed which changed the law of moveable succession.

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“But the Lord Ordinary is of opinion upon the authorities that the expression may be read as meaning those relations who are entitled to take the succession according to law; and that in deeds like that which is founded on in this case it ought to be so read, unless there are expressions to be found in it which indicate an intention to use it in a different sense. It was a part of the mutual settlement of Mr and Mrs Young that the survivor should have full power to direct the disposal of the residue. Indeed, it was the express purpose of the deed that the longest liver should have ‘absolute right’ to the whole property. The question, therefore, as to the meaning of the residuary bequest in favour of the nearest-in-kin of Mrs Young alive at the death of the survivor must be considered to have been made by Mr Young on the day of his death for the purpose of disposing of his own property. It is entirely disencumbered of any notion of personal predilection on the part of Mrs Young, and no difficulty arises from the deed having been made before 1855, or from one of the parties having died before that date.

In such a case the meaning of the expression will depend on the nature of the subject which forms the subject of the destination. If it be an heritable estate, the heir-at-law, according to the rules of succession in heritage, would presumably be called although another relative might be nearer in degree. Of this the case of Connel v. Grierson, Feb. 14, 1867 ( 5 M. 379), affords an example. If, on the other hand, it be a moveable succession that is referred to (as in the present case), those entitled to succeed at law as heirs in mobilibus will be held to be favoured, unless there be something in the deed, as in the case of Scott v. Scott (H. L., May 10, 1855, 2 Mag. 281), which shows that the testator did not desire to adopt the legal order of succession. But the expression is not held to be a technical term signifying exclusively those who would succeed according to the common law as it stood prior to 1855. The cases of Nimmo v. Murray's Trustees, June 3, 1864 ( 2 M. 1144), and Maxwell v. Maxwell, December 24, 1864 ( 3 M. 318), seem to the Lord Ordinary, in this view, to have an important bearing on the present case. In Nimmo's case the expression was ‘my own nearest heirs and successors.’ This was held to include the descendant of a sister who had predeceased the testator, along with a brother who had survived him. In Maxwell's case the bequest was to John Maxwell, ‘his heirs, executors, and assignees.’ This was held to mean the heirs in mobilibus, according to the law of intestate moveable succession, as altered by the Act 18 Vict. cap. 23. Unless, therefore, it could have been shown that the term nearest-in-kin, as used in the settlement of Mr and Mrs Young, was intended to exclude the children of a nephew predeceasing the time of the survivor's death, in the event of any nephew or niece being then alive, there seems to be no reason to doubt that the children of Thomas Thackwray are entitled, as in place of their father, who predeceased, to a share of the succession along with John Robert M'Adam, who survived, or those who represent him.

The case of Cockburn's Trustees v. Dundas, June 11, 1864 ( 2 M. 1185), is not inconsistent with the decision in Nimmo's case. In that case there seems to have been no claim for the children of the deceased grandchildren, and it was pointed out in Maxwell v. Maxwell that there were specialties, which are fully brought out in the opinion of the Lord Justice-Clerk. But for these specialties the Lord Ordinary sees no reason to doubt that the opinion of Lord Neaves would have been given effect to. He held that the testator meant to bequeath the succession to those who should be his heirs in mobilibus or in heritage at the time of distribution, and that the Intestate Succession Act should receive effect and be imported into every will in which the testator leaves his succession to heirs and executors alive at the time of distribution. This was just what had been held in Nimmo's case, and none of the other Judges indicate that their decision in that case was in any degree shaken.

It was observed in argument that the expression ‘next-of-kin,’ or ‘nearest-in-kin,’ was not dealt with in these cases. The observation is a just one, and there is no doubt that the Statute of 1855 itself draws a distinction between ‘next-of-kin ‘and the children of those who if they had survived would have been among the next-of-kin. The question, however, is, What is the meaning of the expression as used in a testamentary deed of this kind? And upon that question the Lord Ordinary thinks that a very sufficient answer is to be found in the opinion of the Lord President in the case of Ferrier v. Angus, Jan. 21, 1876 ( 3 R. 396). ‘The ordinary sense of the words’ (nearest-in-kin) ‘would be the heirs in mobilibus of the spouses—that is, the next-of-kin of each at the time of his or her death.’ There was no competition in that case between one of the next-of-kin and the children of another who had predeceased. But the Lord Ordinary considers that this description of the class shows that the expression ‘next-of-kin’ in a legacy is not presumed to exclude any of those who are heirs in mobilibus according to the law of moveable succession. The opinion of the Lord Justice-Clerk in the more recent case of Webster v. Shiress ( 6 Rettie, 102) is still more adverse to the suggestion that the term must always be read in its strict legal signification. Speaking of the Statute 4 Geo. IV., c. 98, he said—‘I read the expression “next-of-kin” to mean nothing whatever but the heir in mobilibus ab intestato.’

The Lord Ordinary did not understand that there was anything in the settlement indicative of an intention to use the term in a different sense, unless the words themselves have such different meaning.”

The claimants Janes and others reclaimed, and argued—At the date of Mr Young's death, when the succession opened, Robert John M'Adam was the sole surviving next-of-kin to his aunt Mrs Young, and his descendants were therefore preferable to those of his other nephew Thomas Thackwray, who predeceased Mrs Young. “Nearest-in-kin” must mean nearest in blood, and would not include the class of persons brought in by the 1855 Act. Before that Act next-of-kin had been just those persons who would take the dead's part ab intestato, and the Act made no alteration in the status or character of next-of-kin, but simply refers to them as a known order. The case was one of testate succession. The question being one of intention, and Mrs Young having died before the Act was passed, her deed could not fairly be construed by reference to it. The

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cases quoted were all distinguishable from the present.

Replied for the claimants Thackwray and others—This was virtually a case of intestate intestacy. The mutual settlement though dated in 1852, was to all intents and purposes a deed executed in 1864. It must be read by reference to the Act of 1855. “Nearest-in-kin” meant not nearest in blood but heirs in mobilibus. This view was favoured by the cases, and especially by the dicta of this Court in Ferrier's case.

Authorities (besides those cited in the Lord Ordinary's note)— M'Call v. Dennistoun, Dec. 22, 1871, 10 Macph. 281; Turner and Others, Nov. 27, 1869, 8 Macph. 222; Ewart v. Cotton, Dec. 6, 1870, 9 Macph. 232; Stoddart's Trustees v. Stoddart, March 5, 1870, 8 Macph. 667; Webster v. Shiress, Oct. 25, 1878, 6 R. 102; 2 Jarman on Wills, p. 94, and cases there quoted.