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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition - Mrs Sarah Turnbull or Muir [1876] ScotLR 14_24 (3 November 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0024.html
Cite as: [1876] ScotLR 14_24, [1876] SLR 14_24

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

[Commissary of Renfrew.

Wednesday, November 3.

14 SLR 24

Petition—Mrs Sarah Turnbull or Muir.

Subject_1Executor-dative qua next-of-kin
Subject_218 and 19 Vict. c. 23
Subject_3Relict.
Facts:

Held that a mother was entitled to be confirmed executrix qua mother jointly with a widow qua relict, on the ground of the interest in the succession given her by the Intestacy Act of 1855.

Headnote:

This was a petition presented to the Commissary of Renfrew by Mrs Sarah Turnbull or Muir, craving to be decerned executrix qua next-of-kin to her son Alexander Muir. The widow of the deceased had previously presented a petition craving the same appointment qua relict. The

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parties gave in a joint minute stating that they had agreed that they should be appointed joint-executrices.

The Commissary-Depute ( Cowan) pronounced the following judgment:“—The Commissary-Depute having resumed consideration of the petition, with the joint minute of consent, and heard the petitioner's procurator—Finds in law that a mother is not one of the next-of-kin of her children, and that the petitioner is therefore not entitled to be decerned executrix-dative qua one of the next-of-kin, as craved; therefore dismisses the petition, and decerns.

Note.—The Commissary-Depute is of opinion that by the well-defined principles of the law of Scotland, as established by a variety of decisions (of which a very good review will be found in Bell's Law Dict, and Digest, voce Succession) a mother is not recognised as one of the next-of-kin. The Intestacy Act of 1855, no doubt, introduced in favour of the mother a right to a certain part of the succession, and in respect of that right she might be entitled in certain events to be confirmed as executrix: This is not however quite clear. The point does not arise for decision in this case, as she seeks to be confirmed not qua mother but qua one of the next-of-kin. Had she sought in her proper character qua mother to be confirmed, a difficulty would even then have occurred in giving effect to the minute of consent produced in process, the other petitioner claiming qua relict, and it being at least unusual, if not incompetent, to conjoin in the office parties claiming in different characters.”

On appeal the Commissary ( Fraser) adhered, and added the following note:—

“ Note.—A mother is clearly not one of the next-of-kin, and it is a misapprehension of the Act 18 Vict. cap. 23, to suppose that it made any change upon the common law in this respect. It provided certain remedies for admitted grievances by giving a right to the succession in personal estate to persons who by the common law would have had no such right; but this privilege did not import them into the class of next-of-kin. The objects and scope of the Act are well explained, in the case of Turner v. Cooper, 27th Nov. 1869, 8 M'Pherson, p. 222.”

The petitioner appealed.

At advising—

 Judgment:

Lord President—The appellant on 6th March last presented a petition to the Commissary of Renfrew, praying to be decerned executrix-dative qua next-of-kin to the late Alexander Muir, who was her son. The Commissary-Depute found “in law, that a mother is not one of the next-of-kin of her children, and that the petitioner is therefore not entitled to be decerned executrix-dative qua one of the next-of-kin as craved,” and therefore dismissed the petition. The Commissary, on appeal, adhered to this judgment, and substantially, I think, on the same grounds. Now, I am not disposed to differ from the Commissary-Depute, or from the Commissary, in saying that the mother is not one of the next-of-kin in the technical sense of the term, and probably the deliverances of both of these gentlemen are strictly right; but I cannot help thinking that they have dealt a little too severely with the petitioner, who is the mother of the deceased. It appears that the next-of-kin will not accept the office, and that the only other party in the field is the relict, and by a joint-minute the relict and mother have agreed that they should be appointed joint-executrices of the deceased. The Commissary-Depute had some doubt as to the competency of such confirmation. Now, I think that the mother of the deceased, in the absence of any one having a better title, may be confirmed, in consequence of her interest in his succession, by the provisions of the Intestate Succession Act, and in conformity with the old practice I think that parties having equally good titles may be jointly-confirmed executors. Now, I apprehend that parties having an interest in the succession are entitled to be confirmed executors—that is the test of their right to be confirmed. A legatee may be confirmed, and a creditor may be confirmed, upon the ground that they are interested in the administration of the succession. Now, in the case of the mother, this ground of an interest in the succession is supplied by the statute, and therefore her title is quite good. The only difference between her right and that of the relict is that the relict's interest goes back much further, but it is founded on the same ground. We must therefore, I think, send this petition back to the Commissary, with directions to allow an amendment of the petition and to proceed further as shall seem just.

Lord Deas—There seems to have always been a notion that it is more natural for parents to provide for their children than for children to provide for their parents. That notion has given rise to the old law that collaterals were to come in before either father or mother in succession. The new law appears to me to be better and more equitable. The fact that that was law gave rise to the practice of denominating collaterals next-of-kin, although I do not know that a brother or sister can be said to be nearer in kin than a father or mother. The term next-of-kin has been used in various senses, but has been appropriated to a certain class, in respect that that class was entitled to be preferred to the beneficial succession. The question here is, Whether a father or mother, looking to the recent statute, can be legitimately appointed executor? and I agree with your Lordship in thinking that the interest they have in the succession is very material. There is nothing very technical in the appointment of executors; it is within the control of the Court, to be regulated from time to time. The present practice originated in 1666 by the instructions given by the archbishops and bishops to their commissioners and clergy. They ran thus:—“If there be no nomination or testament made by the defunct, ye shall confirme the nearest of kin desiring to be confirmed, and if the nearest of kin shall not desire to be confirmed ye shall confirm such of the creditors as desire to be confirmed as creditors; and if neither nearest of kin, executor, or creditor shall desire to be confirmed, you shall confirm the legators, such of them as desire to be confirmed and instruct that they are legators. And if no person having interest forsaid shall confirm, you shall confirm your procurator-fiscal, datives being always duly given thereto before. And if after the saids datives (but before confirmation) any person having interest shall desire to be surrogat in place of the

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proeurator-fiscall, ye shall confirm them as executors surrogate in place of the procurator-fiscall.

Now, the archbishops and bishops were assuming the provinces of this Court in giving such instructions, and consequently they were ordered to be recorded in the books of this Court under protest not allowing them to encroach on their jurisdiction. But these instructions recognise that any person having an interest in the succession may be confirmed executor. There are certain classes to be confirmed, and it was at one time inferred that you could confirm no one outside these classes; but in the case of Crawfurd (M. 3818), general disponees, who are not a class mentioned in these instructions, came forward and were preferred to the next-of-kin as executors, and since that time it has always been held that general disponees, and not the next-of-kin, come first, and are entitled to be confirmed before anyone else.

That being so, and now that the father and mother have under the recent law become beneficiaries, the only ground on which they were not confirmed is done away with, and therefore I have not the least doubt that they may be confirmed qua father or qua mother. The only difficulty is in saying whether they can be confirmed qua next-of-kin. It is no very great stretch to say that they are among the next-of-kin; but the only thing necessary to say here is that she is to be confirmed qua mother. Nothing more need be asked for; that is enough.

Lord Mure—I agree with your Lordships in thinking that this petition should be remitted to the Commissary to amend. Prior to the Intestate Succession Act of 1854, the rule was that all those who had an interest were entitled to be confirmed unless those who had a preferable interest applied, and it was competent to conjoin persons having different interests if it was judged expedient to do so. Now, by that Act four new classes were introduced as having an interest in the succession, and I find that Mr Alexander, in his edition of 1859 of his Commissary Practice, had no difficulty in giving a form of application for the confirmation of the mother as executor.

Lord Deas—I may add, in consequence of the ground on which we have gone in this petition, that the executor-creditor is entitled to be confirmed by the Act of 1695, cap. 41, and the judicial factor by an Act of Sederunt of this Court.

The Court pronounced the following interlocutor:—

“Recal the interlocutors of the Commissary-Depute and the Commissary, dated respectively the 27th April and 10th May 1876, and remit to the Sheriff of Renfrewshire, as coming in place of the Commissary under the authority of the 35th section of 39th and 40th Victoria, caput 70, to allow the appellant to amend the prayer of the petition, and thereafter to proceed as shall be just, and decern.”

 Counsel:

Counsel for Petitioner— Millie. Agents— J. & A. Hastie, S.S.C.

 1876

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URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0024.html