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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition v. Rainham and Another [1881] ScotLR 19_167 (2 December 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0167.html Cite as: [1881] ScotLR 19_167, [1881] SLR 19_167 |
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Page: 167↓
The Presumption of Life Limitation (Scotland) Act 1881 makes provision regarding the sucession to the heritable or moveable estate of “any person who has been absent from Scotland, or who has disappeared for” various periods of years therein specified. Held that the statute did not apply in the case of the disappearance of a person who had never been in Scotland, and whose only connection with that country was through an aunt who had married a Scotchman, and to whose heritable estate in Scotland it was averred that the absentee had succeeded.
By mutual disposition and settlement, dated 11th September 1847, executed by David Edmiston, gamekeeper, Newburgh, Fifeshire, and Mrs Frances Rainham or Edmiston, his wife, David Edmiston, inter alia, conveyed to his wife, in case she should survive him, and to her heirs, executors, and assignees whomsoever, all and sundry his heritable and moveable estate, of whatever nature or denomination the same might be, which should belong or be addebted to him at the time of his decease. By codicil to this mutual disposition and settlement, dated 27th May 1865, the spouses, still further to regulate the succession to their respective means and estate in the event of the survivor of them failing to execute any other conveyance thereof, left and bequeathed their means and estate, so far as the same might be extant and belonging to the survivor of them at the time of his or her death, but only in that event, to William Rainham, engineer in Glasgow, brother of Mrs Edmiston.
David Edmiston died without issue on the 19th December 1872, survived by his wife, who under the above mutual settlement succeeded to her husband's whole means and estate, and, inter alia, to certain heritable subjects in Newburgh. She did not again marry, and died without issue on 13th June 1873; she did not make up any title to the heritable property left by her husband, or leave any settlement or mortis causa writing other than the mutual disposition and settlement and codicil above mentioned. William Rainham, to whom this property was destined by the codicil, predeceased both the spouses, leaving two children, Rose Ann Rainham and William J. Rainham, presently in India; but there being no destination to heirs, and the trusters not being in loco parentis to William Rainham, the property fell to the heir-at-law of Mrs Edmiston. William Rainham was her elder brother. She had likewise two sisters who survived her, viz., Mrs Grace Rainham or Sparks, wife of Edmund Sparks, of Longton, Staffordshire Potteries, and Anne Maria Rainham; and she had also an immediate younger brother, Timothy Rainham, who (as the present petition averred) “has disappeared for a period of eighteen years, and has not been heard of from that time. The last time he was heard of was in the month of April 1863, when he wrote a letter to his sister, the said Mrs Grace Rainham or Sparks. At that time he was following the occupation of a house-painter under an assumed name in London, but it was stated by him in the said letter that he would not be there long, and it is supposed that he went abroad.”
By section 1 of the Presumption of Life Limitation (Scotland) Act 1881 it is enacted that “In the case of any person who has been absent from Scotland, or who has disappeared for a period of seven years or upwards, and who has not been heard of for seven years, and who at the time of his leaving or disappearance was possessed of or entitled to heritable or moveable estate in Scotland, or who has become entitled to such estate in Scotland, it shall be competent to any person entitled to succeed to an absent person in such estate to present a petition to the Court setting forth the said facts; and after proof of the said facts, and of the petitioner's being entitled as aforesaid, after such procedure and inquiry by advertisement or otherwise as the Court may direct, the Court may grant authority to the petitioner to uplift and enjoy the yearly income of the heritable or moveable estate of such absent person, as the case may be, and to grant all requisite discharges for the same, as if the said absent person were dead; or the Court may sequestrate the estate, and appoint a judicial factor thereon, with the usual powers, and with authority to pay over the free yearly income of the estate to the petitioner, whose discharge shall be as valid and effectual as if granted by the absent person.”
Page: 168↓
The present case was a petition by William J. Rainham, and William Dunlop, his attorney, founding on the foregoing provision. The petition stated that “since the time of his disappearance, as aforesaid, the said Timothy Rainham has become entitled to the foresaid heritable estate, as the immediate younger brother and heir-at-law of the said Mrs Frances Rainham or Edmiston, and the petitioner William J. Rainham, as the only son of the said deceased William Rainham, who was the only brother of the said Timothy Rainham, is the heir-at-law of the latter, and the person entitled to succeed him in the said estate.”
The petition further stated that in 1874 Alexander Laing, banker, Newburgh, had been appointed factor loco absentis to Timothy Rainham, and that according to the last account rendered by Mr Laing there was a balance in his hands amounting to upwards of £103.
In these circumstances the petitioners prayed for intimation and also for service on Laing; “And thereafter, on resuming consideration hereof, and after proof of the facts above set forth, and of the petitioner the said William J. Rainham being entitled as aforesaid, and after such procedure and inquiry by advertisement or otherwise as your Lordships may direct, to grant authority to the said petitioner to uplift and enjoy the yearly income of the said heritable properties, including the foresaid balance thereof in the hands of the said Alexander Laing, and, either by himself or any factor or attorney duly appointed by him, to grant all requisite discharges for the same, as if the said Timothy Rainham were dead; or to do further,” &c.
Laing lodged answers, in which he stated—“It does not appear from the petition that the said Timothy Rainham was a Scotchman, or was ever in Scotland. The respondent believes and avers that he was an Englishman, and was never in Scotland, and submits that in these circumstances, he is not a person ‘absent from Scotland’ in the sense of the Presumption of Life Limitation (Scotland) Act 1881,’ and therefore that the said Act does not apply to the present case.”
The respondent further founded on the 8th section of the Act, which provided that “for the purposes of this Act, in all cases where a person has left Scotland, or has disappeared, and where no presumption arises from the facts that he died at any definite date, he shall be presumed to have died on the day which will complete a period of seven years from the time of his last being heard of at or after such leaving or disappearance.” With reference to this provision the respondent stated that he “has had no communication with Timothy Rainham, and is not aware whether he was heard of after the date stated in the petition, viz., April 1863; but assuming that statement to be correct, then on 13th June 1873, when Mrs Frances Rainham or Edmiston died, Timothy Rainham must, under the section of the foresaid statute above quoted, if it should be held by your Lordships that said statute applies to the present case, be presumed to have predeceased. The succession to the estate in question would therefore open as at that date to the petitioner William J. Rainham, as the only son of Mrs Edmiston's only other brother, and the present petition is in that view incompetent.”
Argued for the petitioner—The petition was competent. There was nothing in the statute to limit it to persons who had once been in Scotland. The Act referred to persons who had “disappeared.” That was general, and in contrast to persons who had been “absent from Scotland.” As to section 8, that could not be said to be one of the purposes of the Act which would render it inoperative. The Act must receive a construction so as to admit of its obvious intention being carried out. At any rate, the petitioner W. J. Rainham was entitled to succeed if it were held that Timothy Rainham died seven years after his disappearance, and if the Court would make a declaration that Timothy had died, then W. J. Rainham could produce that with his petition for service as heir to Mrs Edmiston—otherwise the Sheriff must presume Timothy Rainham to be alive.
Argued for the respondent—The Act was intended to affect only persons who had once been in Scotland. It throughout referred to “the case of any person who has been absent from Scotland or who has disappeared,” and by disappearing it was intended to include cases of persons once in Scotland who had disappeared without it being known whether they had left Scotland or not. On the other question, the only possible construction of section 8 had the effect of making the petition incompetent. Timothy Rainham must, for the purposes of the Act, be held to have died seven years after he disappeared, and consequently he could not have succeeded to the present estate. The petitioner's proposal about service was certainly not one of the purposes of the Act, and besides would affect the fee, not merely the income of the estate.
The Lords made avizandum with the case.
At advising—
Page: 169↓
Now, so far as the title of this statute is concerned, it would appear that long absence from Scotland is the condition in which the person must be regarding the presumption of whose continued life the Court is to make inquiry; and the preamble is in this form—“Whereas great hardships have arisen from the want of any limitation to the presumption of life as regards persons who have been absent from Scotland, or have disappeared for long periods of years, and it is desirable that a limitation should be provided.” In the enacting clauses we have similar words; thus, in the first section—the section relied on here—we find the words, “In the case of any person who has been absent from Scotland, or who has disappeared for a period of seven years or upwards.” Now, it is contended that the alternative “or who has disappeared” justifies an application like the present; that it does not matter who the person is who has disappeared, or what country he belonged to, or where he has disappeared from, or even that he never has been in Scotland in his life, and that if only it is made out that he has disappeared, and has not been heard of for a given time, then the case comes within the meaning of this clause of the Act. This seems to me a very extraordinary construction to put on an Act of Parliament which was confined in its operation to Scotland. It appears to me that the more reasonable and obvious construction is that to come within the operation of the Act the case must be that of a person who has been in Scotland once, and who has either been absent from Scotland seven years, or has disappeared—that is to say, the alternative is that the petitioner must prove that the person whose succession is in question has been absent from Scotland for the period mentioned in the statute, or if it cannot be proved that he ever left Scotland, that he has disappeared and has not since been heard of. On the second alternative, he may have been in Scotland all the time, but if it can be proved that he has disappeared for the requisite number of years the case will still be within the Act. But to apply the Act to a foreigner who had never been in Scotland, and had no connection with it, would be a strained and unnatural construction. And it is the more necessary to be cautious in considering this statute, because though in the present case we are dealing with heritable property the local situation of which was in Scotland, and over which we presumably have jurisdiction, and although the parties interested may be domiciled in another country and have no connection with Scotland, yet the very same words are used later on in the section of the Act relating to moveables. It is there provided that “In the case of any person who has been absent from Scotland, or who has disappeared for a period of fourteen years or upwards, and who has not been heard of for fourteen years, and who at the time of his leaving or disappearance was possessed of or entitled to moveable estate in Scotland, or who has since become entitled to moveable estate there,” then after certain procedure the Court may “grant authority to the petitioner” (the person entitled to succeed to the absent person in such moveable estate) “to make up a title to, receive and discharge, possess and enjoy, sell or dispose of the said moveable estate, in the same manner as if the said absent person were dead.” Now, the person may have disappeared from anywhere—from Paris or Constantinople, for instance—and in that case are we to adjudge that his next-of-kin are to take up his moveable estate over which we have jurisdiction on no ground except that their predecessor has disappeared in a foreign country and has not since been heard of? The site of moveables does not generally give jurisdiction, for moveables have no site, and to apply any other doctrine to this statute might give rise to embarrassments of which it is not easy to see the end. But while that consideration as regards moveables should make us very cautious in dealing with this statute, I cannot say that I have any doubt, taking into account the case of heritage alone. The case, as stated in the petition, does not appear to me to be within either the mischief or the meaning of the Act. The mischief to be remedied is the case of a person who has been in Scotland, who has disappeared from it or within it for a certain length of time, and who was at the time of his disappearance, or has since become, entitled to property in Scotland; and the meaning of the statute is exactly commensurate with the mischief to be remedied. That is to say, it comprehends only the case of one who has been absent from Scotland for a long period, or who has disappeared for that period, although it may be doubtful whether he is in or out of Scotland. On these grounds I think we ought to dismiss this petition.
Page: 170↓
The Lords refused the petition.
Counsel for Petitioner— J. Campbell Smith. Agent— Alex. Gordon, S.S.C.
Counsel for Respondent— Orr. Agents— Boyd, Macdonald, & Co., S.S.C.
