Scottish Court of Session Decisions

On March 20, 1866 the Court found that three out of four writings left in addition to a trust-deed and settlement by the late Miss Jane or Jean Bell, daughter of the late Samuel Bell, architect in Dundee, were not of a testamentary nature, and the cause was remitted to the Lord Ordinary to give effect to this finding, and to proceed further in the cause. The unsuccessful claimants, who maintained the validity of the deeds, asked that expenses should be allowed them out of the fund, in respect the difficulty as to the validity of the writings had been induced by the testatrix herself. The successful claimants, who are also the residuary legatees, on the other hand, contended that those who were unsuccessful should be found liable in expenses.

The Lord Ordinary (Ormidale) took the medium course of neither finding the unsuccessful claimants entitled to expenses out of the fund nor subjecting them in expenses. His Lordship added the following note:—

“In regard to the matter of expenses, the only difficult that was suggested by the parties related to the claimants who have been wholly unsuccessful—their claims having depended on papers which have been found by the Court not to be testamentary writings at all. It was maintained for these claimants not only that they ought not to be subjected in any expenses, but that they were entitled

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to expenses out of the fund in medio, in respect they had reasonable grounds for making their claims, and that it was not their fault, but that of the testatrix, that litigation became necessary to have it determined which of the papers or writings left by her were to be held as forming her settlement. On the other hand, it was maintained not only that the claimants who were wholly unsuccessful should not get any expenses, but that they ought to be subjected in expenses. The Lord Ordinary has arrived at the conclusion, that, in the circumstances of this case—and there is no absolute or invariable rule as to expenses—the medium course, viz., of finding no expenses due to or by the claimants in question, is the correct one. The expenses of raising and bringing the process into Court have been, by a former interlocutor, awarded to the parties by whom these expenses were incurred out of the fund in medio; but the Lord Ordinary does not think that the present is a case for awarding out of the fund in medio, the expense of preferring and maintaining claim founded on writings which have been held by the Court not to be part of the testatrix's settlement at all. The fund not being very large in itself, and various parties having made separate claims, founded on the invalid writings regard to, the consequence would be, that, if all of them were to be found entitled to expenses out of the fund in medio, a very serious inroad would be thereby made upon what, according to the present standing judgment of the Court, belongs to others.”

The unsuccessful claimants reclaimed.

Watson (with him A. R. Clark), for them, argued—The Court have recognised a distinction in disposing of such questions between the case where a party takes his risk of the construction of a clause in a deed admittedly valid, and where he seeks to establish the validity of deeds the operativeness of which is on all hands recognised as a question of doubt. Here the difficulty has been induced by the testatrix herself, and it in only reasonable that the parties who were thereby led to be claimants should have expenses allowed to them out of the fund. Hill v. Burns, 2 W. and S., 389; Cameron v. Mackie, 7 W. and S., 106; Morgan v. Magistrates of Dundee, 3 M'Qu., 176; Dunlop, 1 D., 912.

Gloag (with him A. Moncrzeff), answered—The Court have never, except in very exceptional circumstances, which are not present in this case, given effect to the plea of the reclaimers. But here the respondents are in the position of residuary legatees, and the effect of allowing the unsuccessful claimants whom they have defeated to get their expenses out of the fund, would be to diminish the fund to which, contrary to opposition, they have been preferred. Allan, 7 D. 908; Lady Baird's Trustees, 18 D. 1246; Wilson v. Crosbie, 3 M'P., 882.

At advising,