Scottish Court of Session Decisions

By a codicil dated 1st October 1889 the late Miss Elmslie, of Philadelphia, U.S.A., who died on 20th March 1900, made the following provision—“In regard to the residue of my estate I add the name of Gavin E. Argo, of Scotland, who I wish to divide what falls to him with my relatives of like degree in Scotland living at the time of my death.”

At the time of the testatrix's death there were twenty-nine relatives of the same degree to her as Mr Argo who were living and domiciled in Scotland. Besides these relatives there were two other relatives, viz., Annie Elmslie and Isabella Elmslie, of the same degree of relationship to her as the others, both of whom had been resident in Australia for many years. One of them, however—Annie Elmslie—happened to be residing in Scotland at the date of the testatrix's death, and the other, Isabella Elmslie, resided there from 18th April 1900 to 27th December 1901.

The right of the twenty-nine relatives who were domiciled and living in Scotland to participate in the bequest was not disputed, but a question arose as to the right of Annie and Isabella Elmslie to share in the bequest.

An action of multiplepoinding was accordingly raised in the Sheriff Court at Aberdeen at the instance of Mr Argo, in which all the said relatives (including Annie and Isabella Elmslie) were called as defenders in order to determine their rights to the fund.

On 13th December 1904 the Sheriff-Substitute ( Henderson Begg) found that the claimant Annie Elmslie was entitled to participate in the fund, on the ground that she was de facto resident in Scotland at the date of the testatrix's death, but that the claim of Isabella Elmslie fell to be repelled.

On appeal, the Sheriff ( Crawford) recalled the Sheriff-Substitute's interlocutor and repelled the claims of both Annie and Isabella Elmslie.

Annie and Isabella Elmslie, who were resident in Melbourne, Australia, appealed to the Court of Session.

On the case appearing in the Single Bills counsel for the respondents moved the Court to ordain the appellants to sist a mandatary.

Argued for the respondents—The claimants were resident in Australia. Their claims had been repelled, so that this appeal was similar in its nature to a petitory action. The circumstances in the case of Gordon's Trustees v. Forbes, February 27, 1904, 6 F. 455, 41 S.L.R. 346, were different from the present and were exceptional. In the event of the appellants being unsuccessful the respondents would have the right to ask for expenses, and they were therefore now entitled to have the appellants ordained to sist a mandatary. The requirement of a mandatary applied to all proceedings, not to actions merely, e.g., a claimant in a sequestration had been ordained to sist a mandatary—Mackay's Manual, p. 236. [The Lord President referred to the case of North British Railway Company v. White, November 4, 1881, 9 R. 97, 19 S.L.R. 59, as to the necessity for sisting a mandatary in a multiplepoinding.]

Page: 402↓

Counsel for the appellants was not called on.