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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hogg v. Bruce and Others [1887] ScotLR 24_651 (8 July 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0651.html
Cite as: [1887] ScotLR 24_651, [1887] SLR 24_651

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SCOTTISH_SLR_Court_of_Session

Page: 651

Court of Session Inner House First Division.

Friday, July 8 1887.

24 SLR 651

Hogg

v.

Bruce and Others.

Subject_1Succession
Subject_2Mutual Settlement between Spouses
Subject_3Substitution in favour of “the Nearest in Kin of Us.”
Facts:

A husband and wife disponed their whole estates, which consisted entirely of moveable property, “to and in favour of the survivor of us, and after the decease of the longest

Page: 652

liver of us, to the nearest in kin of us” the said spouses “equally.” Held, in a question between the next-of-kin of the husband and the next-of-kin of the wife, that “the nearest in kin of us” meant one class, embracing the next-of-kin of both spouses, amongst whom the division fell to be made per capita.

Per the Lord President—that the substitution in favour of the nearest of kin was effectual, and could not be defeated by either of the two spouses after the death of the other, because it was matter of contract, and the reservation of the power to alter was given to both spouses jointly.

Headnote:

By contract and mutual disposition, dated 22d July 1835, executed by David Wilson and Isabel Wood or Wilson, his wife, it was provided that the said David Wilson and Isabel Wood or Wilson “do hereby, with and under the burdens and reservations after mentioned, give, grant, assign, and dispone to and in favour of the survivor of us, and after the decease of the longest liver of us, to the nearest in kin of us, the said David Wilson and Isabel Wood, equally … the whole estate and effects, heritable and moveable, real and personal, of whatever kind or wherever situated, at present belonging to us, or either of us, or that shall pertain and belong to the party predeceasing at the time of their death … and declaring these presents to be equally valid and effectual to all intents and purposes as if each particular of our respective means and estate were herein expressly described: And we do hereby nominate and appoint the survivor of us, whom failing the nearest in kin of us, the said David Wilson and Isabel Wood, to be the sole executor or executors of the party predeceasing … And we do hereby reserve our liferent of the whole estate and effects hereby conveyed, with full power to us, with consent of each other, to alter and revoke these presents in whole or in part … And we consent to the registration hereof in the Books of Council and Session, or others competent, for preservation, that all necessary execution may pass on a decree to be interponed hereto in common form.”

This contract and mutual disposition was not altered during the joint lives of the spouses, and there were no children of the marriage. There was no marriage-contract between the spouses. David Wilson died on 4th September 1855. His wife survived him, and accepted of the office of executor, to which the survivor was nominated in the contract and mutual disposition. There was no real estate.

Mrs Wilson died on 27th March 1883. Mrs Agnes Wood or Hogg, as the only surviving sister and next-of-kin of Mrs Wilson, was decerned her executor-dative. Mrs Wilson had three brothers and four sisters, of whom only Mrs Hogg survived. Mr Wilson had no brothers and only one sister, Isabella Wilson or Dickson, who died in 1867, leaving four daughters, Grace, Helen, Catherine, and Isabella, of whom the last named predeceased Mrs Wilson unmarried.

A question arose regarding the construction of the mutual disposition, and this Special Case was adjusted, to which Mrs Hogg was the first party, and Mrs Grace Dickson or Bruce, Mrs Helen Dickson or Thomson, and Miss Catherine Dickson were the second parties.

The first party maintained that she was entitled to one-half of the whole estate as the only surviving sister and nearest in kin of Mrs Wilson. The second parties contended that the nearest in kin of both spouses were called as a class, that the estate should be divided among the nearest in kin of both spouses per capita, and that the division should accordingly be into four equal parts.

The question presented for the judgment of the Court was—“Whether the destination in the above-mentioned contract and mutual disposition ‘to the nearest in kin of us, the said David Wilson and Isabel Wood, equally,’ confers a right to one-half of the succession on the nearest in kin of the husband, and to the other half on the nearest in kin of the wife; or whether the nearest in kin of both spouses are to be treated as a single class, and the succession divided equally among the individuals of that class?”

It was argued for the first party that the words “nearest in kin” were to be taken in the proper sense as unaffected by the Statute 18 Vict. cap. 23— Young's Trustees v. Janes, December 10, 1880, 8 R. 242. In other cases the same words were found, with, however, an explanatory clause— Young's Trustees v. janes, supra; Murray v. Gregory's Trustees, January 21, 1887, 14 R. 368. No doubt in a certain class of cases the presumption was for division per capitaMacdougall v. Macdougall and Others, February 6, 1866, 4 Macph. 372. But that was always limited to the case of a destination to children or issue. In general, too, the case was simple, because the document to be construed was the will of one person. Here the presumption was the other way. It was a mutual will, equivalent to two wills. Besides, the language of the deed was important. The words are “to … equally,” not “between” or “among.” Moreover, there was here no relationship between the two sets of next-of-kin— Allen v. Flint, June 15, 1886, 13 R. 975.

It was argued for the second parties that the division should be per capita, The testators were dealing with an estate, of which the corpus was composed of the funds of both, and they had in view the next-of-kin, considered as forming one class. Had they intended otherwise, they would have inserted a special provision, as in the case of Young's Trustees v. Janes, supra cit.

At advising—

Judgment:

Lord President—The probability is that the estate left by the spouses was originally entirely estate of the husband. At all events, as there was admittedly no marriage-contract or settlement of any kind, I think it must be taken that the estate was his jure mariti. What the spouses did was to deal with the entire estate in this way:—It is to go, in the first place, to the survivor in fee; there is no limitation, and failing the survivor there is a substitution in favour of the “nearest in kin of us”—the two spouses—equally. That substitution is effectual, and could not be defeated by either of the two spouses after the death of the other, because it is matter of contract, and the reservation of the power to alter is to both spouses jointly.

The words which we have to construe are “the nearest in kin of us.” Following upon these words are the words “the said David Wilson and Isabel Wood” equally, but I do not see that the

Page: 653

mention of these names makes any difference. I Now, I cannot help thinking that the spouses were dealing with the nearest of kin of the spouses as constituting one class. It is said to be strange that persons wholly unconnected should make a class in a settlement of this kind. But I see nothing startling in that. A husband and wife, with no children of their own, very often look on the nearest relations of the spouses on both sides as having claims upon them, and as being in fact members of their family. It rather appears to me that that is the spirit which we find expressed in this deed—“We will just leave our whole estate to all our next-of-kin, yours as well as mine.” I cannot construe the deed in any other way. And this view—that one class was intended, and an equal division among the members of that class—is supported by the clause nominating an executor. It is quite plain that there was a confusion of ideas. The survivor was to be executor of the predeceasing spouse, and when he died the nearest of kin were to be his or her executor. The cause of this blunder was an attempt to put two sentences into one. What was meant was this—“We nominate and appoint the survivor to be executor of the party predeceasing, and on the death of the survivor we appoint the next-of-kin to be executors.” That is to say, when the last deceasing spouse dies, the executors are to be the next-of-kin of the spouses. That cannot be the next-of-kin of one of the spouses, nor one individual of each class of the next-of-kin. Neither of those constructions will do. So no construction of the expression next-of-kin in that clause will do which excludes the next-of-kin of husband and wife from being executors. But if all the next-of-kin are to come in as executors, that raises a strong presumption in favour of the same construction in the dispositive clause. I think the result is that it is impossible to extract anything in support of the contention that there is to be a division between two sets of next-of-kin who are in no way divided in the deed.

Lords Mure, Shand, and Adam concurred.

The Court answered the question by finding that the nearest in kin of both spouses were to be treated as one class, and that the succession was to be divided equally among the individuals of that class.

Counsel:

Counsel for the First Party— Pearson—Guthrie. Agents— H. & H. Tod, W.S.

Counsel for the Second Parties— Comrie Thomson—A. J. Young. Agents— Welsh & Forbes, S.S.C.

1887


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URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0651.html