Scottish Court of Session Decisions

The testator does use the term in this latter sense, for she calls John Stoddart, who is a first cousin once removed, and to whom she leaves a legacy of £100, ‘one of my second cousins.’ She further calls Helen Bennet ‘my second cousin,’ while it is admitted that Helen Bennet is no relative at all. In these circumstances those who are first cousins once removed averred and offered to prove ‘that the testatrix was in the habit of calling them, and persons standing in their degree of relationship, her second cousins; and they further aver that the expression “second cousins” in the will was meant by her to designate, and is therein used to designate, those standing in the aforesaid degree of relationship to the testatrix.’ This offer of proof was resisted as incompetent, but the Lord Ordinary would have allowed it if he had thought it to be necessary in order to enable him to arrive at the conclusion he has reached. The case comes within the rule laid down by Sir James Wigram (p. 8)—‘Any evidence is admissible which in its nature and effect simply explains what the testator has written, but no evidence can be admissible which in its nature or effect is applicable to the purpose of showing merely what he intended to have written.’ The evidence tendered here would have simply been to explain what the words used by the testator meant, not what the testator intended to write, and therefore according to this rule it would be admissible. But it is not necessary to resort to such extraneous evidence, because the deed itself shows what the testator meant much better than any parole evidence given by her friends and neighbours could do. When she calls John Stoddart a second cousin, she thereby intimated that she considered a cousin once removed to be a second cousin; nor is the effect of this taken off by the fact that she calls Helen Bennet, who is no relative at all, a second cousin. If the testator knew that Helen Bennet was not a relative, and still called her a second cousin, there might be some ground for holding that she attached no very definite meaning to the words. But there is nothing to suggest that she did not believe that her servant was not her second cousin. On the contrary, the presumption is that she did believe her to be so, rightly or wrongly. Now, a testator is allowed to use his own glossary, provided he himself furnishes the translation—to write in a cipher, provided he furnish the key to it. He may declare that by James he means John, and that by ten he means a hundred, and that by second cousins he means first cousins once removed. It is a notorious fact (and a Judge is bound to take notice of it) that amongst the humbler classes the term second cousin is used to indicate the relationship of cousin once removed, and that the latter term is one almost unknown in the phraseology of these classes in Scotland. It would appear to be so also in England, for in one of the English cases on the point the Vice-Chancellor of England said, ‘It was very common for persons to call the children of their first cousins their second cousins’— Slade v. Tooks, 9 Sim, 386.

Therefore, having obtained from the testator herself a key to her meaning, the technical import of the words must yield to the intention so expressed, and it is no answer to this evident intention to say that there are persons existing who are properly second cousins, and that consequently it is unnecessary, in order to find a legatee, to hold that a cousin once removed is, in the sense of this will, a second cousin.

There seems to be no judgment in the Scottish Courts bearing on the questions here raised. The English decisions are collected in Roper on Legacies, vol. i. p. 145, together with the following recent cases— In re Parker, 15 Ch. Div. 528, aff. 17 Ch. Div. 262; in re Bonar, 19 Ch. Div. 201.”

Leave having been granted, the residuary legatees, the Right Rev. James Smith and others, as representing the Church of Scotland and the Royal Infirmary, reclaimed, and argued—The principle is that if a term is used in describing a class of legatees which is not entirely satisfied by any persons who are claimants under the will, it may then be inferred that the word was not used in its ordinary sense, and the persons who come nearest the description given by the term may be preferred, but that where persons were to be found who were exactly described by the term used no such construction is needed. Here there were second cousins in the proper sense, and no other persons need be looked for. The testator could hardly be thought to have contemplated favouring a great multitude of people of whom she knew nothing. The deed was framed by a conveyancer, who presumably understood the terms he used. No inference could be drawn from the description of John Stoddart as to what the truster meant by a second cousin, for she applied the term to Helen Bennet, who was not a cousin of hers at all.

Argued for first cousins once removed—“Second cousin” is not a technical term of law, but a popular term, and must be construed in its well-known popular sense. Second cousins in a strict sense were not so nearly related to the truster as first cousins once removed, and it was fair to suppose that in calling relatives as a class she did not intend to leave out those nearest to her who were popularly described as being of that class. Niece had been held to include “grandniece” in an analogous case to the present— James v. Smith, 1844, 14 Simon's Rep. 214.

Authorities—Those cited in the opinion of the Lord Ordinary.

The Lords made avizandum.

At advising—

Lord President—The testatrix Miss Margaret Drylie was possessed of a considerable amount of moveable property. She had no very near relatives—none indeed nearer than cousins-german, but she had two cousins-german, Jane Bennet

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