Scottish Court of Session Decisions

Thomas Anderson, picture dealer, Glasgow, died on 29th July 1895, unmarried and intestate,

Page: 398↓

leaving estate amounting to £18,750, of which about £17,000 was moveable and £1750 heritable. He was survived by the following relatives—(1) Mrs Jane Anderson or Jamieson, a paternal aunt; (2) Mrs Annie Anderson or Walker, the only child of William Blair Anderson—a paternal uncle predeceased; and (3) by one child and three families of grandchildren of a paternal aunt. Mrs Jamieson was consequently his sole next-of-kin, and as such was decerned executrix-dative to the intestate on 22nd August 1895. Mrs Walker was heir-at-law of the deceased.

The Intestate Moveable Succession Act (18 and 19 Vict. c. 23), section 1, after enacting that descendants of next-of-kin who have predeceased the intestate are to take the share which would have fallen to their parent if he had survived the intestate, enacts—“Provided always that no representation shall be admitted among collaterals after brothers and sisters' descendants and section 2 provides as follows—“Where the person predeceasing would have been the heir in heritage of an intestate leaving heritable as well as moveable estate had he survived such intestate, his child being the heir in heritage of such intestate, shall be entitled to collate the heritage to the effect of claiming for himself alone if there be no other issue of the predeceaser, or for himself and the other issue of the predeceaser if there be such other issue, the share of the moveable estate of the intestate which might have been claimed by the predeceaser upon collation if he had survived the intestate.”

In these circumstances questions arose between Mrs Jamieson and Mrs Walker as to whether Mrs Walker was entitled to collate the heritage and obtain a share of the combined fund, and this special case was presented to the Court. The parties to the case were (1) Mrs Jamieson as executrixdative of the intestate; (2) Mrs Jamieson as an individual; and her husband William Jamieson for his interest; and (3) Mrs Walker.

The second parties maintained that Mrs Jamieson, as sole surviving next-of-kin of the deceased Thomas Anderson, was entitled to the whole of the moveable estate left by him, and that the third party had no right or title to any share in the same.

The third party, on the other hand, contended that she, the heir in heritage of the said deceased Thomas Anderson, being the only child of the said William Blair Anderson, who had he survived would have been not only heir in heritage but also one of the next-of-kin of the said deceased Thomas Anderson, was entitled to collate the heritage to the effect of claiming onehalf of the combined heritable and moveable fund, as her father could have done if he had survived the deceased Thomas Anderson.

The opinion of the Court was requested upon the following questions :—“(1) Is Mrs Jamieson, as the sole surviving next-of-kin of the said Thomas Anderson, entitled to the whole of his moveable estate, to the exclusion of any right of collation by the heir-at-law Mrs Walker?; or (2) Is Mrs Walker entitled to collate the heritage, and to receive one-half of the combined moveable and heritable estate, the other half thereof falling to Mrs Jamieson?”

Argued for the second parties—At common law the heir-at-law had no right to collate if he was not at the same time one of the next-of-kin.— M'Caw v. M'Caw, December 28, 1787, M. 2383; Anstruther v. Anstruther, January 20, 1836, 14 S. 272, at p. 282. Under the Intestate Moveable Succession Act the child of a predeceasing uncle had no right to any part of the moveable estate if any of his father's brothers or sisters were surviving, as representation was confined to the descendants of the intestate's brothers and sisters—see Ormiston v. Broad, November 11, 1862, 1 Macph. 10. Section 2 of the Act was unintelligible unless read in connection with section 1, and if so read the intention of the statute appeared to be that when the heir-at-law was the representative of a person who would have been heir-at-law and also one of the next-of-kin if he had survived, and was himself within the class of persons entitled under the Act to share in the moveable estate, he should be entitled to collate, but not otherwise—M'Laren's Wills and Succession, vol. i., sec. 299.

Argued for the third party—The sections were independent, and section 2 should receive construction according to its terms without reference to section 1. In Ormiston, cit., the effect of section 2 was not under consideration. The intention of the statute was that the heir-at-law should have a right to collate if the person whom he represented would have had that right had he survived the intestate.

At advising—