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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adam (Colville's Factor) v. Nicoll and Others [1913] ScotLR 62 (21 November 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/51SLR0062.html Cite as: [1913] SLR 62, [1913] ScotLR 62 |
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Page: 62↓
(Before Seven Judges.)
[
The proviso in section 1 of the Intestate Moveable Succession (Scotland) Act 1855, which provides that “no representation shall be admitted among collaterals after brothers' and sisters' descendants,” applies also to section 2.
A died intestate, survived by, inter alios, a first cousin on his father's side, who was his sole next-of-kin, and by the children of a predeceasing cousin also on the father's side. B, one of the children of the predeceasing cousin and A's heir-at-law, claimed, on collating the heritage, to which he was admittedly entitled, to participate along with his sisters in A's moveable estate in virtue of section 2 of the Act. Held that B was not entitled to share in the moveable estate.
Jamieson v. Walker, March 4, 1896, 23 R. 547, 33 S.L.R. 397, overruled.
The Intestate Moveable Succession (Scotland) Act 1855 (18 and 19 Vict. c. 23) sec. 1, enacts—“In all cases of intestate moveable succession in Scotland accruing after the passing of this Act, where any person who, had he survived the intestate, would have been among his next-of-kin, shall have predeceased such intestate, the lawful child or children of such person so predeceasing shall come in the place of such person, and the issue of any such child or children … who may in like manner have predeceased the intestate, shall come in the place of his or their parents predeceasing, and shall respectively have right to the share of the moveable estate of the intestate to which the parent of such child or children or of such issue, if he had survived the intestate, would have been entitled; provided always that no representation shall be admitted among collaterals after brothers' and sisters' descendants.…”
Section 2 enacts—“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 … and where in the case aforesaid the heir shall not collate, his brothers and sisters, and their descendants in their place, shall have right to a share of the moveable estate equal in amount to the excess in value over the value of the heritage of such share of the whole estate, heritable and moveable, as their predeceasing parent, had he survived the intestate, would have taken on collation.”
On 16th November 1912 A. Y. Adam, solicitor, Dundee, judicial factor on the estate of the late John Colville, bank agent, Dundee, pursuer and real raiser, brought an action of multiplepoinding and exoneration against Mrs Annie Bruce Adam or Nicoll, widow of Charles Nicoll, High Street, Lochee, and others, defenders, for the determination of certain questions relating to the distribution of Mr Colville's estate. Mr Colville, who died intestate and without issue on 13th October 1911, was an only child, and his nearest relations were descendants
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of brothers and sisters of his father. He left heritable estate of about £800, and moveable estate of between £8000 and £9000 in value. Claims were lodged by, inter alios, (1) the said Mrs Nicoll, the intestate's only surviving cousin on the father's side and his (the intestate's) sole next-of-kin; (2) by Robert Adam, shoemaker, Edinburgh, the intestate's heir in heritage, he (Robert Adam) being a son of the late David Adam, a predeceasing cousin on the father's side; and (3) by Mrs Annie Adam or Lister, Liff Road, Lochee, and others, the children (other than the said Robert Adam) and grandchildren of the said David Adam.
The claimant Mrs Nicoll claimed as sole surviving next-of-kin of the intestate to be ranked and preferred to his whole free moveable estate.
The claimant Robert Adam maintained that he was entitled as the heir in heritage of the intestate to claim along with his sisters and his nephew and niece the share of the moveable estate of the intestate which might have been claimed by his father the said David Adam upon collation if he had survived the intestate. He therefore claimed to be ranked and preferred (1) to the intestate's whole heritable estate, and (2) to one-sixth of the share of the moveable estate which might have been claimed by the said David Adam upon collation if he had survived the intestate.
The claimants Mrs Lister and others claimed to be ranked and preferred to the following proportions of the share of the moveable estate of the intestate which might have been claimed by their father and grandfather the said David Adam on collation if he had survived the intestate, namely, each of the daughters one-sixth thereof, and each of the grandchildren (the children of a predeceasing son) one twelfth thereof.
On 26th June 1913 the Lord Ordinary ( Ormidale) pronounced the following interlocutor:—“Finds that the claimant Mrs Annie Bruce Adam or Nicoll is the daughter of a sister of the father of the deceased John Colville, who died intestate on 13th October 1911, and that she was at the date of his death the sole surviving next-of-kin of the said John Colville: Finds that the claimant Robert Adam is the eldest son, and that the claimants Mrs Annie Adam or Lister, Mrs Elizabeth Adam or Butchart, Mrs Mary Adam or Stark, and Mrs Jessie Adam or M'Leish, are children, and the claimants William Robertson Adam and Agnes Milne Adam are grandchildren, all of the late David Adam, who was the son of a sister of the father of the said John Colville, and predeceased the said John Colville, and who would, had he survived the said John Colville, have been his heir-at-law and one of his next-of-kin along with the claimant Mrs Annie Bruce Adam or Nicoll: Finds that the claimant Robert Adam is the heir in heritage of the deceased John Colville, the intestate, and is entitled as such to be ranked and preferred in terms of the first branch of his claim: Finds also that the said Robert Adam is entitled to participate in the moveable estate of the intestate, and to be ranked and preferred in terms of the second branch of his said claim: Finds that the claimants Mrs Annie Adam or Lister, Mrs Elizabeth Adam or Butchart, Mrs Mary Adam or Stark, and Mrs Jessie Adam or M'Leish, and William Robertson Adam and Agnes Milne Adam, are also entitled to participate in the moveable estate of the said intestate, and to be ranked and preferred in terms of their claim: Finds that the claimant Mrs Annie Bruce Adam or Nicoll is entitled, as next-of-kin foresaid, to receive and to be ranked and preferred upon the balance of the fund in medio; and with those findings appoints the cause to be enrolled for further procedure: Grants leave to reclaim.”
Mrs Nicoll reclaimed.
On 4th November 1913 the First Division appointed the case to be heard before Seven Judges.
Argued for reclaimer— Esto that prior to the Intestate Moveable Succession Act 1855 (18 and 19 Vict. cap. 23) there was no representation in moveables—though there was representation in heritage, however remote the heir might be—the Act had altered the rule by introducing representation in moveables subject to this limitation, that among collaterals representation should not be admitted after brothers' and sisters' descendants. That being so, where, as here, the intestate was survived by a cousin and the children of a predeceasing cousin, the latter were not entitled to any share of the moveable estate. The fact that one of these children was the heir in heritage did not entitle him to collate the heritage in order to claim a share of the moveables, for it was only when the heir was himself one of the next-of-kin that he was entitled to this privilege— M'Caw v. M'Caw, 1787, M. 2383; Anstruther v. Anstruther, January 20, 1836, 14 S. 272, at p. 282; Ormidale v. Broad, November 11, 1862, 1 Macph. 10; Turner v. Couper, November 27, 1869, 8 Macph. 222, 7 S.L.R. 130. Sec. 2 of the Act of 1855 did not, as the respondents maintained, extend the limits prescribed by sec. 1, for the proviso contained in sec. 1 applied equally to sec. 2—M'Laren on Wills, vol. i, pp. 120 and 152. The opening words of sec. 2, viz., “Where the person predeceasing” clearly referred to the person designed by sec. 1, i.e., to one of the limited class therein defined. The Act did not say “where the heir in heritage has predeceased,” but “where the person predeceasing …” Esto that it would have been otherwise had sec. 1 contained the words “Except as after mentioned in sec. 2,” no such words were used. The respondents founded on the proviso in order to exclude the families of John and William, and at the same time appealed to sec. 2 to bring in the family of David, who were in the same degree of relationship. That could not have been the intention of the Act. The case of Jamieson v. Walker, March 4, 1896, 23 R. 547, 33 S.L.R. 397, in which the Court held that sec. 2 was to be read apart from and as extending the scope of sec. 1, was wrongly decided, and the case of Innes v. Coghill,
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October 22, 1897, 25 R. 23, 35 S.L.R. 20, did not do more than lay down the rule for applying that principle. In the later case of Robertson v. Robertson, (1907) 15 S.L.T. 249, Lord Mackenzie (Ordinary) thought he was bound to follow the case of Jamieson ( cit). Argued for respondents—Sec. 2 of the Act of 1855 was to be read independently of sec. 1, for the Act was clear in its terms; that being so, the respondents' claim was unanswerable. The right conferred by sec. 2 was an independent right conferred upon the heir in virtue of his position as heir, and was not limited by the proviso in sec. 1— Jamieson ( cit.). The law of Scotland had always favoured the heir in heritage, whereas the case of Turner ( cit.) showed that the representation in moveables introduced by the Act of 1855 was a novel remedy in favour of the issue of a predeceasing next-of-kin who would otherwise have been excluded. The words “where the person predeceasing” were not, as the reclaimers contended, inappropriate, for they limited the right to the case of a person having the dual character of heir in heritage and the representative of one who, had he survived, would have been among the next-of-kin. An heir's right to collate was not limited to cases where he was one of the next-of-kin, for a grandson by the eldest son of the deceased was entitled to collate with the deceased's immediate children—Ersk Inst. iii, 9, 3.
At advising—
The case before us relates to a mixed succession, heritable estate of the value of some £800 and moveable estate of the value of between £8000 and £9000. The intestate, an only child, died unmarried survived by one cousin, his next-of-kin, a Mrs Nicoll, who claims the whole moveable succession. The heir-at-law is to be found in the family of a deceased cousin, and he has four sisters. He claims, on collating the heritage, to participate along with his four sisters in the moveable succession. His claim rests exclusively upon the statute, because it is conceded, that not being one of the next-of-kin he would not be entitled by the common law of Scotland, on collating the heritage, to participate in the moveable succession. There are two families of deceased cousins who make no claim. It is conceded that the statute does not admit the latter families to a right to participate in the moveable succession, and that it is only the family which has the good fortune to number among its members the heir-at-law which enjoys this privilege. That would be a fantastic result to which we should be led. If we were shut up by the plain words of the statute to that conclusion, I presume we would give effect to it. But I am of opinion that we are not.
The whole controversy turns upon the meaning to be attached to the expression in the opening words of the second section of the Act, “the person predeceasing.” In my judgment “the person predeceasing” means exactly what it says, and does not mean “any person predeceasing.” When the statute means “any person predeceasing” it says so, and these very words will be found at the opening of the third section. If, then, we are to interpret these words “the person predeceasing” as meaning what they say, we must look for that person in the first section of the Act. We there find “the person predeceasing” either amongst the ascendants or the descendants or the brothers and sisters of the intestate, or the descendants of brothers and sisters of the intestate. But the father of the family in which the heir-at-law in the present case is a member is not to be found in any one of these categories, and therefore the claim of that family fails.
I have only now stated shortly what might in other language be expressed in three propositions—(First) that the first and second sections of this statute are not to be regarded as separate and independent enactments, but to be read together as comprehending the whole scheme of representation in moveables introduced by the Act of Parliament; (Second) that the proviso in the first section is applicable to the whole scheme of representation in moveables introduced by the statute; and (Third) that the object of the second section of the statute is to apply in the case of mixed successions the rule of representation which is applied by the first section to estates consisting of moveables alone.
These propositions I regard as sound in law. All of them were disregarded in the judgment of the Second Division in the case of Jamieson v. Walker, (1896) 23 R. 547. That decision must now be regarded as overruled, and I move your Lordships, therefore, to recall the interlocutor of the Lord Ordinary—which I may say in passing he could not do otherwise than pronounce—to rank and prefer Mrs Nicoll to the whole of the moveable estate, to rank and prefer the heir-at-law
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At common law, before the passing of the Act of 1855, representation in heritage was fully recognised without limit, but there was no representation in moveables. The heir, if he was himself one of the next-of-kin, was entitled to claim his share of the moveable estate with the other next-of-kin, on condition of collating the heritage, but if he was not one of the next-of-kin he had no right of collation. This last proposition seems to have been doubted by Mr Erskine—Inst. iii, 9, 3—but the law was laid down in the sense I have indicated in M'Caw, (1787) M. 2383, which has always been followed, e.g., Anstruther, (1836) 14 8. 272, 282. But Mr Moncrieff for the respondents contended, in the course of an able argument, that the Act of 1855, section 2, had in effect made law by statute that which Mr Erskine thought might be or ought to be common law in regard to collation. I observe that Mr Erskine's doctrine is carefully restricted to a case where the heir as well as the next-of-kin is a descendant of the intestate. So far I agree with Mr Moncrieff that section 2 has restored Mr Erskine's doctrine; and indeed it goes somewhat further, for it provides that an heir descended from a brother or sister of the intestate may collate with those whom the statute designates as the intestate's heirs in mobilibus. But if Mr Moncrieff's clients are to succeed, a much greater change in the common law must ave been effected than the restoration of Mr Erskine's doctrine, even with the extension I have indicated. In order to succeed they must, I apprehend, show that under the statute an heir, not related to the intestate within the degree specified in the first section, may nevertheless, under the second section, claim to share in the moveable estate on condition of collation. I am unable so to read the Act. As matter of construction I think the plain meaning of its words negatives the respondents' argument.
The first section of the statute introduced representation in moveables, but only within narrow and well-defined limits. It expressly provides that “in all cases of intestate moveable succession in Scotland accruing after the passing of this Act, where any person who, had he survived the intestate, would have been among his next-of-kin, shall have predeceased the intestate, the lawful child or children of such person so predeceasing shall come in place of such person,” and so forth; but the section ends with the important and quite unqualified words, “provided always that no representation shall be admitted among collaterals after brothers' and sisters' descendants.” The second section by its initial phrase makes it to my mind clear that it is intended to follow as a direct sequence of section 1, and cannot be read as a substantive provision independent of it. The opening words are, “Where the person predeceasing,” &c. I think the word “the” is precisely equivalent to “such,” and so one is taken back to section 1, and to its proviso as regards the extent and degree to which representation in moveables is intended to be introduced by the Act. I need not quote the words of the second section. It is to my mind clear that they must all be read subject to the scope of section 1 and its proviso. If this be so, it seems to follow that Robert Adam, the heir-at-law, not being within the class of persons entitled to share in the moveable estate, has no right of collation either for himself or for the benefit of his sisters or his nephew and niece (see M'Laren on Wills and Succession (3rd ed.), vol. i, p. 152, sec. 299).
For these reasons I think that the Lord
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The Act in its entire purview was remedial—its object to alter certain anomalies and defects in the Scots law of intestate succession. As pointed out by Lord President Inglis in Turner's case, (1869) 8 Macph. 222, the particular purpose of the first section of the Act was “to take away the hardship which arose when, of several persons who would have been all equally next-of-kin of an intestate, one or more had predeceased the intestate leaving children.” By the common law the children of the particular intestate would have been excluded from all share in the moveable succession of the intestate, though their parent had he survived would have taken an equal share with the other next-of-kin, and though they being left orphans are more likely to be the most necessitous. To remedy this hardship the statute introduced representation in moveable succession. But it introduced it with the limitations, first, that of the predecessor it must be possible to predicate that had he lived he would have been among the actual next-of-kin— Turner's case; and second, that representation among collaterals shall be confined to the descendants of brothers and sisters of the intestate. Thus in the present case, the next-of-kin of the intestate, being one cousin out of a family of seven, the other six having predeceased the intestate, the statute did not go the length of bringing in the children of those of the six who left issue, and, in particular, the children of the predeceaser with whom we are concerned, to share by reason of the statutory introduction of representation in moveables, because they are outside the category of those to whom the benefit of representation is accorded by the statute— Ormiston v. Broad, (1862) 1 Macph. 10.
But, then, how was the common law of collation to be reconciled with this limited statutory recognition of representation? Was section 2 of the Act added as a complement of section 1 to avoid a new or further anomaly which might, I think would, have been created by that section had it stood alone or as an entirely separate and detached provision, not remedial of any hardship which can be suggested, or of any existing defect in the law of succession, but occasioning what indeed would have called for remedy. Adapting the expression of Lord Justice-Clerk Inglis in Ormiston's case, if in answering this question “we incline to that which shall give the statute consistency and effect, we are at once led to the conclusion” that section 2 was added for the former purpose.
The second section commences with the words, “Where the person predeceasing would have been the heir in heritage of an intestate.” If this is treated as an independent provision, then it must apply to every case without limitation of the predecease of a person who would have been heir in heritage of an intestate. I do not think that I should detain the Court by exposing the anomalies which would be created, and the confusion which would result, from the combination of the limited introduction of representation of predeceasing next-of-kin by section 1, with the assumed universal introduction of representative collation by section 2. But the statute does not say “where a person predeceasing,” but “where the person predeceasing,” and the definite article is, I think, used with meaning and intent. It indicates that to find the person referred to, the reader is sent back to something preceding, viz., to section 1. When he turns to that section he finds that “the predeceaser” is not any predeceaser, but a predeceaser of a class limited by two conditions. If the person predeceasing, and who would, had he survived, have been heir in heritage of an intestate, would have been (1) among his next-of-kin, and (2) within the limited class of collaterals specified in the proviso of section 1, then it at once becomes clear that to complete the remeid of the common law, not only must his issue be given the benefit of representation in moveables, but that provision must be made for reconciling the law of collation with this introduction of limited representation in the law of moveable succession. And this, and this only, is provided for by section 2, and it is provided for in a manner which exactly meets the case. It must be kept in mind that no heir-at-law who is not one of the next-of-kin can collate at common law ( M'Caw, (1787) M. 2383). If then by representation he acquires right to share in the moveables, and as a condition of taking that share is not required to collate, injustice to others would be done. To remedy that possible result of section 1, section 2 was required. But to that purpose section 2 is, I think, limited. If the predeceaser does not come within the above category, there is no suggestion of any reason for the provision of section 2, regarded as an independent provision. And am satisfied that it was not intended to give a right to collate, and to share in the benefit of collation, as would be the result of the judgment in Jamieson's case ( 1896,
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The Lord Ordinary had no alternative but to follow the precedent in Jamieson's case. But for the above reasons I think that that decision was unsound, and that the interlocutor reclaimed against must therefore be recalled.
According to the mode in which the statute is expressed, I think the prima facie view is that section 2 deals with a different set of circumstances from those dealt with in section 1; but to read it in that way is to make the two sections inconsistent with each other; and therefore 1 agree with your Lordship in the chair that we must read them together. So reading them, I am of opinion that the result at which the Second Division arrived cannot be sustained.
If sections 1 and 2 are read together, then I think the argument of the respondents' is untenable. I am accordingly unable to agree with the judgment in Jamieson v. Walker, upon which the Lord Ordinary has proceeded.
The Court pronounced this interlocutor—“Adhere to the said interlocutor except in so far as it finds the various claimants entitled to be ranked and preferred on the moveable estate of the deceased: Recal said findings, and in lieu thereof find that the said Mrs Annie Bruce Adam or Nicoll is entitled as sole next-of-kin of the deceased to be ranked and preferred in terms of her claim: Remit to the Lord Ordinary for further procedure, and decern.”
Counsel for Mrs Nicoll (Claimant and Reclaimer)— Chree, K.C.— J. R. Christie. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
Counsel for Robert Adam and Others (Claimants and Respondents)— Moncrieff, K.C.— A. R. Brown. Agents— Gordon, Falconer, & Fairweather, W.S.
