Scottish Court of Session Decisions

Alexander Black died on 1st April 1828, and at the time of his death he was possessed of, and infeft in, certain heritable properties consisting of—(1) subjects at Dundee; (2) subjects at Ferry-Port-on-Craig, both held in feu of subject superiors. He was survived by his widow, Eliza Crease or Black, who died on 23d February 1837, and by his only child, a daughter, Elizabeth or Betsy Black. The said Elizabeth or Betsy Black was married—(1) to Lieutenant Robert Snell, who died in July 1824; and (2) to Andrew Low, surgeon at Ferry-Port-on-Craig, who died in April 1870. The said Alexander Black left a disposition and settlement of his whole estate, heritable and moveable. By this deed of settlement, which was dated 2d September 1818, he “conveyed his whole heritable estate of every description then belonging to him, or which might belong to him at his death, and specially, but without prejudice to the said generality, the subjects in Dundee above mentioned, to and in favour of the said Eliza Crease or Black, his spouse, in liferent for her liferent use allenarly in case she should survive him; whom failing by decease, whether before or after him, to and in favour of the said Elizabeth or Betsy Black, his daughter, then wife of the said Lieutenant Robert Snell, also in liferent, for her liferent use allenarly, and under the burden therein written; and to and in favour of Elizabeth Mary Snell, daughter of the said Elizabeth or Betsy Black, and Robert Snell, the son then lately procreated by them, and not then named (afterwards named William Black Snell), and any other child or children that might be procreated by the said Elizabeth or Betsy Black of her then present and any future marriage into which she might enter, and the survivors or survivor of them, equally between or among them if more than one; and failing the said child or children, to and in favour of William Greig, George Greig, Robert Greig, and Barbara Greig, children of the marriage between George Greig, tenant at Easter Denside, and Isobel Black, his sister-german, and the survivors or survivor of them, equally among or between them, in fee heritably.”

By the same deed he appointed certain persons to be his executors, and gave directions as to the disposal and distribution of his whole moveable estate.

By a codicil to this settlement the said Alexander Black, inter alia, in the event of the death of his wife and daughter before the children of the latter should have attained majority, disponed to Dr Andrew Low, his daughter's second husband, the liferent use and right of his whole property.

The said Elizabeth or Betsy Black survived the testator, and his widow, her mother, and died on 20th March 1865. She had issue of both her marriages, but only two of her children survived her—viz., Edward Keats Nelson Snell, a son of her first marriage, and Sophia Low, a daughter of her second marriage.

On the death of Dr Andrew Low, and the consequent expiration of his liferent, in April 1870, questions arose as to the party or parties entitled to the fee of the said subjects, and it was agreed to have the conflicting claims of the parties determined by the Court on a Special Case to be adjusted for that purpose. There were four parties who claimed the heritable property in whole or in part—(1) Edward Snell; (2) George Low White, James Tofts, and Catherine Tofts, trustees of the deceased Dr Andrew Low; (3) Isobel Greig or Stiven, Ann Greig or Smith, and Agnes Greig or Kyd, the surviving children of the deceased William Greig, the testator's nephew; (4) Robert Kerr, only surviving son of the late Barbara Greig or Kerr, the testator's niece.

Marshall, for the first party, Edward Snell, claimed on three grounds alternatively. In the first place, he claimed as heir served and retoured to Edward Keatts Nelson Snell, arguing that the whole heritable estate was vested in the said Edward Keatts Nelson Snell as the last surviving child of the testator's daughter; in the second place, he claimed as heir-at-law to Elizabeth Mary Snell and Edward Keats Nelson Snell, the children of the testator's daughter who survived the death of his widow, on the ground that on the death of the widow the right to the fee vested in the testator's grandchildren; and in the third place, he claimed as heir-at-law of William Black Snell, Elizabeth Mary Snell, and Edward Keatts Nelson Snell, the testator's grandchildren who survived him, on the ground that the right to the fee of the estate vested in them on the testator's death.

J. G. Smith, for the second parties, claimed as being trustees to Dr Andrew Low, who was heir served and retoured to his daughter Sophia Low, the only child of Elizabeth or Betsy Black, who survived her, except Edward Keatts Nelson Snell. The trustees, therefore, claimed one-half of the estate, whether vesting should be held to have taken place at the death of the testator or at the death of Elizabeth or Betsy Black.

Webster, Shand, and Balfour, for the third and fourth parties contended that Elizabeth Black's children having all died without issue, and without making up any title, the issue of William Greig and Barbara Greig became the parties having right under the destination in the deed; that the succession descended to them per stirpes; and that therefore the third and fourth parties were entitled to one-half each of the fee of the property.

The question submitted for the opinion and judgment of the Court was, “Which of the parties to this case has or have right under the said disposition and settlement by the late Alexander Black, or otherwise, to the said heritable subjects, and if more than one of the said parties have right thereto, in what proportions have they respectively right to the same?”

At advising—