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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Craig and Others, Petitioners [1882] ScotLR 19_358 (20 January 1882) URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0358.html Cite as: [1882] SLR 19_358, [1882] ScotLR 19_358 |
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Page: 358↓
A man left this country for America, and was last heard of “upwards of thirty years ago.” A petition, under section 4 of the above-cited Act, by his next-of-kin for authority to make up title to and divide his share of a succession, which opened twenty-three years after his disappearance, was refused, in respect that in terms of section 8, there being no presumption arising from the facts of his having died at any definite date, he must be held to have died seven years after he was last heard of, and so to have predeceased the opening of the said succession.
By the Presumption of Life Limitation (Scotland) Act 1881 (44 and 45 Vict. c. 47) it is provided, section 4, 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, or 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, it shall be competent to any person entitled to succeed to the said absent person in such moveable 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, and after such procedure and inquiry by advertisement or otherwise as the Court may direct, the Court may grant authority to the petitioner to make up and 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.” Section 8 provides—“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.”
William Craig, residing in Glasgow, died childless and intestate on 27th September 1874. His widow and one of his sisters were confirmed executrices-dative on his moveable estate, which amounted to £8039, 14s. 6d. The present application was made by them and by two other sisters and a brother of the said William Craig, and also by the children of a deceased brother, the petitioners alleging themselves to be the sole next-of-kin of the deceased, for authority to make up title to, receive, and divide, in terms of section 4 of the above-cited Act, the share of the said William Craig's moveable estate (amounting to £786, 15s. 9d), which fell on his death, as they averred, to Robert Craig, another brother of the said William Craig.
The petitioners averred that Robert Craig “left this country for New York in the end of the year 1844 or beginning of the year 1845. Shortly after his arrival there he wrote a letter to his brother the said William Craig, or to his father (now deceased). That letter long ago went amissing, and cannot now be found, and since its receipt nothing further has been heard from the said Robert Craig. Upwards of thirty years ago he was seen in St Louis; but since then he has not been heard of. At the time he sailed for America he would be about thirty-seven years of age.” They further averred—“In order if possible to trace the said Robert Craig, the executrices of the said William Craig caused advertisements to be inserted in the various newspapers enumerated in a statement herewith produced, of the dates, and in the terms therein set forth. But no authentic information has down to the present date been obtained regarding the missing man. That the petitioners are the sole next-of-kin of, and the only persons entitled to succeed to, the said Robert Craig in said moveable estate.”
The Court ordered the petition to be intimated on the walls and in the minute-book, and to be advertised once in the newspapers in which advertisement had formerly been made as above stated, and they allowed the petitioners a proof on commission. The result of that proof was substantially to establish the petitioners' averments as above.
Counsel for the petitioners was thereafter heard on the petition and proof. He argued—The
Page: 359↓
fourth section of the Act is unqualified in its terms; to entitle the petitioners to decree it is only necessary to show that the absentee has since the date of his disappearance become entitled to moveable estate in Scotland. The presumption of death at the expiry of seven years from disappearance created by the 8th section is only to be applied where under a petition it becomes necessary to determine the rights of competing claimants to a fund. In the present case the same persons would take whether the absentee were held to have died seven years after disappearance or at any subsequent time. It is therefore unnecessary in this case to apply the 8th section at all. Its application in every case would produce a result inconsistent with the provisions of the first five sections of the Act. There is no reason why the representatives of an absentee should be called upon to wait (under the 4th section) fourteen years and (under the 5th section) twenty years before being entitled to ask the authority of the Court to make up title to moveable and heritable property respectively if the absentee is in every case presumed to be dead within seven years after his disappearance. To apply the presumption in question in every case would be to limit the operation of the Act to the very narrow class of cases where the absentee either was possessed of property at the date of his disappearance or succeeded to it within seven years thereafter. At advising—
The person who disappeared in this case was Mr Robert Craig, brother of a Mr William Craig, who died in Glasgow on 27th September 1874, and the petitioners are brothers and sisters, and the children of a deceased brother of the said William Craig. Robert Craig left this country for New York at the end of the year 1844 or the beginning of 1845, as the petition states, and it is also stated that shortly after his arrival there he wrote a letter, which however has disappeared and cannot now ‘be recovered. The only other statement in the petition on this matter is that “upwards of thirty years ago he was seen in St Louis, but since then he has not been heard of. At the time he sailed for America he would be about thirty-seven years of age.” A proof was allowed, and these statements have been confirmed on oath by the petitioners and their agents, and there is no reasonable doubt that they are perfectly well founded. The state of the facts therefore is, that Robert Craig was last heard of thirty years ago in America. Now, if he had been possessed of moveable estate when he left this country there is no doubt the petitioners would have been entitled on these averments to succeed to it. That, however, was not the case. What is alleged is that he has since become entitled to moveable estate on the death of William Craig on 27th September 1874. It might be a difficult and doubtful question whether, if there were no direct light to guide us through this statute, we could fairly assume that Robert Craig having been last heard of thirty years ago was still alive in 1874, and so in a condition to succeed to William Craig as one of his next-of-kin. But fortunately that matter has not been left in doubt, for by section 8 of the statute it is enacted 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.” Now, applying that section to the present case, we are bound to presume, in the absence of any other “presumption arising from the facts,” that Robert Craig died seven years after what is called “thirty years ago”—that is to say, twenty-three years ago; and if that is so, it is plain that he did not succeed, and could not have succeeded, as one of the next-of-kin of William Craig in 1874. If, indeed, there had been any special facts in the case to raise a presumption that he died at any definite date subsequent to 1874, we should be bound by the 8th section of the statute to give effect to such presumption. But there are no other facts stated other than those which I have mentioned. I am therefore of opinion that the petitioners have not made out their case. They have not, and cannot, in the face of the 8th section, establish that Robert Craig has become possessed of moveable estate in Scotland since his disappearance.
Page: 360↓
It may be that the petitioner here may make out at common law a right to this property, but it must be on the assumption that the absent person has survived the period of vesting.
The Lords refused the prayer of the petition.
Counsel for Petitioners— Ure. Agents— Smith & Mason, S.S.C.
