Scottish Court of Session Decisions

Isabella Wilson died in 1868. By her settlement she directed her executors, after deducting all her lawful debts and legacies, “when my whole subjects and effects are recovered, and the preferable claims paid, to divide the same (with the exceptions after mentioned) equally among the four following Charitable societies, viz., one-fourth to the London Missionary Society; one-fourth to the British and Foreign Bible Society; one-fourth to the Home Missionary Society, and the remaining one-fourth to the Society for the Conversion of the Jews.” This action of multiplepoinding was now raised, in the name of Isabella Wilson's executors, by Mrs Wilson or Walker or Ogg and her husband, the parties called being “the Society for the Conversion of the Jews, if any such there be,” and Mrs Ogg, “the next of kin or one of the next of kin of the deceased,” and her husband, and others. The fund in medio was the one-fourth destined to he Society for the Conversion of the Jews.

A claim was lodged for Mrs Ogg and other parties, claiming as next of kin. They alleged that the bequest to the “Society for the Conversion of the Jews” was void in respect of uncertainty, there being no society in existence bearing that designation, and it being impossible to determine what society the testatrix intended to benefit.

James Wilson compeared and lodged a claim as next of kin, making the same allegation in regard to the “Society for the Conversion of the Jews,” as was made by Mrs Ogg.

The “Scottish Society for the Conversion of Israel” claimed the fund in medio. The Society, they alleged, had existed for upwards of twenty years. The congregation at Huntly, in which the testatrix had been a member, was visited by the Society's agent, and made collections on its behalf. The testatrix was a subscriber to the Society, and to a periodical issued by it, and the testatrix intended by her bequest to leave, and had validly left, one-fourth of the residue of her estate to the Society.

The Lord Ordinary ( Ormidale), on 28th Nov. 1866, pronounced an interlocutor finding “that the claimants, Mrs Ogg and others, and the claimant James Wilson, ought, before the case is farther proceeded with, to have an opportunity of establishing their title as next of kin to the deceased Isabella Wilson, as averred by them respectively.” “ Note—The competition here is betwixt the claimants, the Society for the Conversion of Israel, on one hand, and the claimants referred to in the interlocutor, who respectively allege that they are the next of kin of the deceased Mrs Wilson, whose succession is in dispute on the other hand. It appears to the Lord Ordinary to be proper, if not indispensable, that it should be determined, in the first instance, which of the two parties referred to in the interlocutor is truly the next of kin of the deceased, as it is clear that only one of them can be so.”

A proof was thereafter taken partly before the Lord Ordinary and partly by commission, and on 12th February 1867, the Lord Ordinary pronounced an interlocutor finding that the claimants had failed to establish their propinquity to the testatrix, and rejecting their claims; finding no expenses due to or by either of these claimants inter se, but finding said claimants respectively liable in expenses to the claimants, the Society for the Conversion of Israel, since the date of the interlocutor allowing the proof; and before farther procedure as to the claim for the Society for the Conversion of Israel, ordaining intimation to the Officers of State in order that they might, if so advised, make appearance for the interests of the Crown.

Wilson acquiesced, but Ogg and others reclaimed.