(Ante vol. x. p. 92.)
Subject_Succession — Testament — Destination — Heritable and Moveable — Conversion — Heir and Executor.
A testatrix left to trustees her whole property, consisting principally of heritage, with directions to sell and dispose of it, and after payment of legacies to pay over the residue “to my heir-at-law, whom failing, to my next of kin.” These instructions were carried out, and in a competition between cousins of the testatrix claiming as her next of kin, and a cousin's child claiming as her heir-at-law, Held (aff. judgment of Court of Session) that the testatrix did not by “heir-at-law” mean her heirs in mobilibus, but her heir in heritage — her intention being to give the residue to the person who would have succeeded to it had a sale not been necessary.
By trust disposition and settlement, dated 15th May 1852, Mrs Grant, afterwards Mrs Sillars, “gave, granted, assigned, and disponed to the Reverend Peter Gardiner, chaplain in the prison, Ayr, John C Haldane, surgeon, Ayr, and William Pollock, writer, Ayr, and to the survivors or survivor of them, all and whole her pro indiviso half of certain subjects in St Enoch's Wynd, and others, in the burgh of Glasgow; as also her pro indiviso half of the lands of Davidston, in the county of Ayr, all therein specially described; as also, her whole estate and effects, heritable and moveable, pertaining to her at her death. She also thereby appointed her said trustees to be her executors, but in trust always for the ends, uses, and purposes therein mentioned; and she directed them, immediately after her decease, to sell and dispose of her whole means and estate, and after paying her debts, deathbed and funeral expenses, and the legacies and annuities therein named (all of which have been paid and settled), to pay over the residue of her estate to her heir-at-law, whom failing, to her next kin, and that at the first term of Whitsunday or Martinmas that should occur six months after her death, as the said trust-disposition and settlement in itself more fully bears.” On 5th June 1852 Mrs Grant executed an antenuptial contract of marriage with Thomas Sillars, whereby, under certain burdens and reservations, she disponed to herself, whom failing the children of her intended marriage, whom failing to herself and her heirs and assignees whomsoever, the subjects therein described, (being the same as those specially described in and conveyed by her said trust disposition and settlement), but excluding her said husband's jus mariti, right of courtesy, and right of administration in relation to the said subjects, and the rents and proceeds thereof, which the said Thomas Sillars thereby renounced. It was, however, thereby provided and declared, that in the event of Mrs Jean Oswald Calder Glen or Grant predeceasing the said Thomas Sillars, he should have the liferent enjoyment of the whole rents and profits of her means and estate thereby conveyed, and the foregoing conveyance was burdened with the said liferent accordingly.” The testatrix died in June 1853 without issue, and in 1859 the lands left by her were sold, the debts, legacies, and annuities paid, and her husband received a sum equivalent for his liferent until 25th March 1872, when he died. The residue of the said trust estate, amounting to £2300, constituted the fund in medio in this action. The claimant, William Steuart, as heir-at-law served to the testatrix, claimed the whole fund, which was also claimed by the Rev. John Glen, Miss Margaret Glen, and Mr Wilson, as next kin of the testatrix at the time of her death.
The Lord Ordinary ( Ormidale) held that the words were to be read as meaning next of kin, but
the Second Division recalled his interlocutor, and held that it was to be taken in its ordinary legal meaning, whether the words following were capable of any intelligible meaning or not. The next of kin appealed against this decision to the House of Lords.
For the Appellants it was contended that the Lord Ordinary had put the only construction on the deed which gave a meaning to all the words, whereas by the argument of the respondents the words “whom failing, to the next kin,” were struck out as unintelligible.
Counsel for the respondents were not called upon.
In delivering judgment—
Interlocutor appealed against affirmed, and appeal dismissed, with costs.
Counsel for Appellants—Lord Advocate ( Gordon), Q.C., Horn, and Paterson. Agents— J. C. & A. Stewart, W.S.
Counsel for Respondent— Cotton, Q.C., J. T. Anderson, and Grosvenor. Agents— J. & A. Peddie, W.S.