Scottish Court of Session Decisions

This was an action at the instance of persons designing themselves executrices-dative qua surviving next of kin of a Mrs John Maclaurin against the trustees acting under the will of the deceased John Maclaurin. The conclusions of the action were for count, reckoning, and payment with regard to one-half of the goods in communion betwixt Mr and Mrs Maclaurin at the date of her death.

Mrs Maclaurin died on 5th September 1825, childless and intestate. The pursuers were her nieces, and produced as their title a decree-dative in their favour as executrices-dative qua surviving next of kin of her, dated 7th October 1864. Mrs Maclaurin was survived by her husband, who died in 1838. He left a settlement dated in 1837, under which the defenders are trustees.

The pursuers say that by Mrs Maclaurin's death as aforesaid one-half of the goods in communion devolved upon her next of kin, and that the same is now vested in them, and falls to be recovered and administered by them. They admit that at the date of Mrs Maclaurin's death they were not her next of kin, and that her nearest of kin then was their mother, Mr Bone, who, they further admit, was survived by their father, Mr Bone, who is now also dead. The pursuers further say that they are the next of kin of their father as well as of their mother.

The defenders, on the other hand, averred that the pursuers did not represent any of those who were next of kin to Mrs Maclaurin at the time of her death, for, on the assumption that Mrs Bone, their mother, had such a claim, it was transferred to her husband jure mariti. They therefore pleaded—1st, As the pursuers do not represent the parties who were Mrs Maclaurin's next of kin at her death, they are not beneficially interested in her succession. 2d, The pursuers' title as libelled in the summons being not only unsupported but contradicted by their averments on record, the action should be dismissed.

In their original defences, the defenders had stated a preliminary plea in these terms—“The pursuers lave no title to sue. They do not represent the parties who were Mrs Maclaurin's next of kin at her death.” This plea was upon 27th June 1865 repelled by the Lord Ordinary (Barcaple) “as an objection to the title to sue,” and this judgment was acquiesced in.

Parties having been heard upon the closed record, and the first two pleas in law above quoted, Lord Ormidale (Ordinary) sustained the same, and dismissed the action, and found the defenders entitled to expenses. In a note his Lordship said—

“The pursuers have brought, and now maintain this action ‘as executrices” dative qua ‘surviving next of kin of the deceased Mrs Arabella Bell or Maclaurin’. Such is their title, and their only title libelled; and they conclude for count, reckoning, and payment of the amount of the goods in communion betwixt Mrs Bell or Maclaurin and her husband at the death of the former in 1825.

In answer, however, to stat. 6 for the defenders, it is admitted that ‘at the time of Mrs Maclaurin's death, the present pursuers were not among her next of kin, her sister, Mrs Alice Bell or Bone, the mother of the pursuers, being then alive.’ The pursuers go on also to admit that at ‘Mrs Maclaurin's death the pursuers' mother was married, and that she was survived by the pursuers' father, who died a few years ago.’ The pursuers no doubt further add that they are executrices and next of kin of their father, as well as their mother, and that the interest which fell under their father's jus mariti devolves on them.

Now, in the first place, the Lord Ordinary holds it to be clear that the pursuers can take no benefit in the present action—in the summons in which they expressly state that they sue as the next of kin or executrices dative, not of their father or mother, but of Mrs Maclaurin, who appears to have been their aunt—from the allegation introduced for the first time into their revised condescendence that they are also executrices and next of kin of their father and mother, in support of which they have neither libelled nor produced

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any decree-dative or other title whatever. Indeed, the Lord Ordinary might have hen warranted in sustaining the defenders' ninth plea in law, which is to the effect that as the pursuers' claim as executrices of their father and mother was incompetently introduced at adjustment, it could not be regarded at all; but he has thought it unnecessary, and better not to do so, as the mere allegation that the pursuers are next of kin to their father and mother, as well as their aunt, may be said to have been called for and made in consequence of the statement in the defences.

If, then, the allegation by the pursuers in the revised condescendence, that they are the next of kin of their father as well as their mother, cannot either add to or detract from their right and title as libelled, the question comes to be, whether that alleged right and title are sufficient, in the face of the admissions of the pursuers in their answer to the 6th article of the defenders' statement of facts. The Lord Ordinary is of opinion that they are not, in respect that by the statute 4 Geo. IV., cap. 98, see. 1, all the right to the goods in communion in question, as now claimed by the pursuers, must be held to have vested without confirmation in their mother, Mrs Bone, and been transmitted from her to her husband jure mariti. Nor can the Lord Ordinary hold it to be of any materiality that the pursuers have produced a decree-dative in support of their title as executrices and next of kin of their aunt, Mrs Maclaurin, as the claim or debt in question is no longer in bonis defuncti of her, but has passed to her sister, Mrs Bone, and from her to her husband. A decree-dative being at any rate only an inchoate proceeding, can in no view give efficacy to a title which, on the pursuers' own showing and admission, is both in fact and law inapplicable to the circumstances of the case.

For an illustration of the manner in which the statute 4 Geo. IV., c. 98, has been held to operate in circumstances involving the same principles as the present me, reference is made to the case of Mann or Smith and Husband v. Shands, 9th Feb. 1830, 8 Sh. 48.”

The pursuers reclaimed.

A. R. Clark and Watson, for them, maintained that the pursuers were entitled to insist in the action; that the defenders could not get behind the decree-dative by way of exception; that they were entitled to the office of executor whether beneficially interested in the succession or not, and although they were not next of kin to the defunct at the date of her death. But, further, they were beneficially interested, as upon Mrs Maclaurin's death the right to one-half of the goods in communion devolved upon Mrs Bone, and, upon the death of the latter, upon them.

Gifford and Orr Paterson, for the defenders, maintained that the pursuers having admitted on record that they were not next of kin to Mrs Maclaurin at the date of her death, could not maintain the action in that character. The decree-dative was a mere inchoate proceeding, which if the pursuers' admissions were correct could not be completed by confirmation in the character libelled. The pursuers had made up no title as “representatives of next of kin.” That was not the title founded on in the summons, and even assuming the pursuers to possess that character, it could not aid them in maintaining the present action. The right to Mrs Maclaurin's estate being transmitted to the representatives of her next of kin at the time of her death, the defenders would not be in safety to pay to, and were not bound to litigate with, the pursuers. Frith v. Buchanan, 3d March 1837.

At advising,