Scottish Court of Session Decisions

The Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. c. 29) by section 16 provides that “A crofter may, by will or other testamentary writing, bequeath his right to his holding to one person, being a member of the same family; that is to say, his wife or any person who, failing nearer heirs, would succeed to him in case of intestacy (hereinafter called the ‘legatee’), subject to the following provisions—( d) If the landlord or his known agent intimates that he objects to receive the legatee as crofter in the holding, the legatee may present a petition to the Sheriff praying for decree declaring that he is the crofter therein … and if any reasonable ground of objection is established to the satisfaction of the Sheriff he shall declare the bequest to be null and void; but otherwise he shall decern and declare in terms of the prayer of the petition … ( g) If the legatee shall accept the bequest, and the bequest is not declared to be null and void as aforesaid, the legatee shall be entitled to possess the holding on the same terms and conditions as if he had been the nearest heir of the crofter… . ( h) If the legatee does not accept the bequest, or if the bequest is declared to be null and void as aforesaid, the right to the holding shall descend to the heir of the crofter, in the same manner as if the bequest had not been made. Provided always that in the case of any legatee or heir-at-law more distant than wife, son, grandson, daughter, granddaughter, brother or son-in-law it shall be competent to the landlord … to represent that for the purpose of enlarging their holding or holdings the holding ought to be added to them; …”

By deed of settlement dated 1st October 1890 the late Niel M'Lean, crofter, Cornaig-beg, Tiree, who died 14th November 1890, bequeathed his right to his holding to his

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niece Mrs Flora M'Lean, the daughter of his brother, as her own absolute property. The bequest was duly intimated to the landlord, who expressed his willingness to accept of her as tenant. The deceased was survived by two sons and five daughters, of whom Malcolm, the eldest son, and a daughter Margaret came to the funeral and refused thereafter to leave the croft. In consequence of said refusal Mrs Flora M'Lean, with concurrence of her husband, brought an action of removing in the Sheriff Court at Oban in December 1890 against the said Malcolm M'Lean and the said Margaret M'Lean to have them ordained summarily and instantly to flit and remove themselves furth and from the dwelling-house and lands at Cornaig-beg aforesaid, in which she pleaded, that “having the sole legal right and title to the holding of crofts at Cornaigbeg aforesaid which belonged to the deceased” she was entitled to decree as prayed for.

It was pleaded in defence—“(1) No title to sue. (2) The bequest founded on is null and void, in respect that the female pursuer is not a member of the same family as the deceased Niel M'Lean, and that nearer heirs have not failed. (3) The female pursuer does not possess the qualification of a legatee required by section 16 of the ‘Crofters Holdings (Scotland) Act 1886,’ and the bequest to her is null and void. (4) The defender being the eldest lawful son and nearest lawful heir of the deceased Niel M'Lean, is entitled to retain possession of the said croft.”

The Sheriff — Substitute ( Maclachlan) found that the said Mrs Flora M'Lean did not possess the qualification of a legatee, required by section 16 of the Crofters Holdings (Scotland) Act 1886, and that said request was insufficient to exclude the claim of the defender Malcolm M'Lean as eldest son and heir to the deceased, to the said holding, and therefore assoilzied the defenders.

“ Note.—By section 16 of the Crofters Holdings (Scotland) Act 1886, a crofter is empowered to bequeath his holding to one person being a member of the same family, and the question is, whether a niece can be so considered when the deceased has left sons and daughters. The section defines a member of the same family as meaning the wife or any person who, failing nearer heirs, would succeed to the crofter in the case of intestacy. If this were to mean, as the pursuers contend, any who might succeed in the hypothetical case of there being no nearer heirs in existence, it would leave the power of bequest practically unlimited, and the section itself would be meaningless, because any person, however distantly related, might claim to be included in this description. It is not difficult, however, to come to the conclusion that by the above expression is meant those who would succeed in the case of intestacy, nearer heirs having failed—that is to say, the next-of-kin—and that the nearer heirs must fail before the holding can be bequeathed to more distant relatives. In the present case the deceased's next of kin are his sons and daughters, including the issue of any that may have predeceased him, and it is only when those fail that a niece can be included among the next-of-kin or have the holding bequeathed to her. Taking this view of the case, it is unnecessary to consider the objections to the deceased's settlement stated by the defender by way of exception.”

The pursuers appealed to the First Division of the Court of Session, and argued—There was no trace in the Act of the restriction sought to be put upon the crofter's choicebythe Sheriff-Substitute, the effect of whose judgment would be to set up a compulsory law of primogeniture throughout the Western Highlands. The next-of-kin had no place here, the subject being heritable. If it had been intended to benefit the heir-at-law, the power of bequest conferred upon the crofter was unmeaning. A simple power in favour of the wife would have been sufficient. The person who might be benefited was the wife (perhaps the son-in-law, though his name bad dropped out of the principal part of the clause) and any person who might become the crofter's heir ab intestato.

Argued for the respondents—The nearer heirs not having failed, the bequest was invalid. Possibly a crofter might select one of his family or even of his household although not his heir-at-law, but not as here a descendant of collaterals not even resident with him. If the Sheriff-Substitute was wrong, there was virtually no limitation on the crofter's right of bequest.

At advising—