Scottish Court of Session Decisions

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Cite as: [1867] SLR 5_229, [1867] ScotLR 5_229

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SCOTTISH_SLR_Court_of_Session

Page: 229↓

Court of Session Inner House First Division.

Wednesday, February 5. 1867.

5 SLR 229

Wilson's Executors

v.

Society for Conversion of The Jews, and Others.

Subject_1Proof
Subject_2Propinquity
Subject_3Title to sue
Subject_4Expenses.
Facts:

Claims as next of kin in a multiplepoinding repelled, in respect of failure in the proof of propinquity. In the circumstances expenses given to the respondent in a reclaiming note, although his title to appear and claim was objected to, and had not yet been made matter of proof, and the reclaimer objected that he might thus be paying to a party who ought never to have appeared in the action.

Headnote:

Isabella Wilson died in 1868. By her settlement she directed her executors, after deducting all her lawful debts and legacies, “when my whole subjects and effects are recovered, and the preferable claims paid, to divide the same (with the exceptions after mentioned) equally among the four following Charitable societies, viz., one-fourth to the London Missionary Society; one-fourth to the British and Foreign Bible Society; one-fourth to the Home Missionary Society, and the remaining one-fourth to the Society for the Conversion of the Jews.” This action of multiplepoinding was now raised, in the name of Isabella Wilson's executors, by Mrs Wilson or Walker or Ogg and her husband, the parties called being “the Society for the Conversion of the Jews, if any such there be,” and Mrs Ogg, “the next of kin or one of the next of kin of the deceased,” and her husband, and others. The fund in medio was the one-fourth destined to he Society for the Conversion of the Jews.

A claim was lodged for Mrs Ogg and other parties, claiming as next of kin. They alleged that the bequest to the “Society for the Conversion of the Jews” was void in respect of uncertainty, there being no society in existence bearing that designation, and it being impossible to determine what society the testatrix intended to benefit.

James Wilson compeared and lodged a claim as next of kin, making the same allegation in regard to the “Society for the Conversion of the Jews,” as was made by Mrs Ogg.

The “Scottish Society for the Conversion of Israel” claimed the fund in medio. The Society, they alleged, had existed for upwards of twenty years. The congregation at Huntly, in which the testatrix had been a member, was visited by the Society's agent, and made collections on its behalf. The testatrix was a subscriber to the Society, and to a periodical issued by it, and the testatrix intended by her bequest to leave, and had validly left, one-fourth of the residue of her estate to the Society.

The Lord Ordinary ( Ormidale), on 28th Nov. 1866, pronounced an interlocutor finding “that the claimants, Mrs Ogg and others, and the claimant James Wilson, ought, before the case is farther proceeded with, to have an opportunity of establishing their title as next of kin to the deceased Isabella Wilson, as averred by them respectively.” “ Note—The competition here is betwixt the claimants, the Society for the Conversion of Israel, on one hand, and the claimants referred to in the interlocutor, who respectively allege that they are the next of kin of the deceased Mrs Wilson, whose succession is in dispute on the other hand. It appears to the Lord Ordinary to be proper, if not indispensable, that it should be determined, in the first instance, which of the two parties referred to in the interlocutor is truly the next of kin of the deceased, as it is clear that only one of them can be so.”

A proof was thereafter taken partly before the Lord Ordinary and partly by commission, and on 12th February 1867, the Lord Ordinary pronounced an interlocutor finding that the claimants had failed to establish their propinquity to the testatrix, and rejecting their claims; finding no expenses due to or by either of these claimants inter se, but finding said claimants respectively liable in expenses to the claimants, the Society for the Conversion of Israel, since the date of the interlocutor allowing the proof; and before farther procedure as to the claim for the Society for the Conversion of Israel, ordaining intimation to the Officers of State in order that they might, if so advised, make appearance for the interests of the Crown.

Wilson acquiesced, but Ogg and others reclaimed.

Judgment:

Maclean for reclaimers.

Dean of Faculty ( Moncreiff) and W. A. O. Paterson for the Society.

Lord President—I think it is very much to be regretted that there has been so much expense in

Page: 230↓

this process, as I understand the fund to be very small, and no less than two sets of parties are here to prove whether they are next of kin of the testatrix; but, as the case stands, there is no course open to us but either to adhere or alter the interlocutor on the merits and proof for the claimant Ogg, the claimant Wilson, who sought to establish his propinquity, having acquiesced. The Lord Ordinary has found that these claimants have failed to establish their propinquity as alleged by them respectively to the testatrix, the late Isabella Wilson, and I entirely agree in that conclusion. I never saw such a shadow of proof as this, for it is merely proof that this Mrs Ogg herself says she once heard her grandmother say that she was first cousin of a certain George Wilson, who was grandfather of the testatrix. No doubt hearsay evidence is admissible in cases such as this, where the party whose statements are given is dead. But I never heard that the hearsay of one party, reported by another, is enough to make out a case. But that is all we have here. The proof is weak, not only in what it presents, but in what it does not present. There is no family in Scotland that for—three or four generations has not some scrap of written evidence to offer in the way of proving the descent of some member of the family. I never saw such a meagre case of evidence as this.

Lord Curriehill—I concur.

Lord Deas—I agree that this case is not in a shape in which we can put an end to it as it might have been. This lady left the residue of her estate to the Society for the Conversion of the Jews. This Society says it is the society designated. The only answer to that is, that this Society had been merged into another. That is denied. If there had been a proof of the averments about that, and it had appeared that this was the Society, and that it was not extinct, even though it had joined another Society, the result would have been that the Society would have got its money, and none of the next of kin would have had anything to do with it. In place of that, the parties claiming as next of kin are put to prove their propinquity in order that they may have a title to try the question with the Society. The result is that neither party is next of kin, and now their money must go to the Crown or the Society. The question whether this is the Society is only beginning. If the Society had been allowed a proof at the same time as the other parties, we should have had proof whether this was the Society or not. If it was, it would have been in a position to be preferred to the fund, and there would have been an end of the matter. While it is unfortunate that this is the shape of the case, I agree that, in the position of matters, we cannot do anything but adhere,

Lord Ardmillan concurred

Paterson moved for expenses.

Maclean opposed, on the ground that the title of the Society had not been established, and the reclaimer if found liable in expenses to the Society, might in the end be found to have paid to a party who had no title to appear at all.

The Court gave expenses.

Solicitors: Agent for Reclaimer— Wm. Miller, S.S.C.

Agents for Respondent— J. & A. Peddie, W.S.

1867