Scottish Court of Session Decisions

Lee, for Frederick Graham's trustees, claimants in the competition, moved the Court to open up the record so as to allow the claimants to alter their claim, and claim one-fourth instead of one fifth of the estate. He cited Ferguson's Trustees, 22 D. 1442, and 4 M'Q. 397.

The Court unanimously refused the motion.

Lord President—The motion now made is, as I understand it, that the trustees of Frederick Graham, claimants in this multiplepoinding, shall be allowed to alter the second head of their claim so as to enable them to claim one-fourth instead of one-fifth of one-sixth of the whole estate, with interest from 5th February 1853. I am of opinion that that is an incompetent motion, and that we have not the power, even if we had the will, to grant it. There is a closed record here in a competition, and distinct claims lodged in a competition in which the trustees, holders of the fund, have no interest. They have surrendered the fund into the hands of the Court, and left the Court to say in what way the fund is to be divided. The Court having called on the parties to come forward and compete, they have come and competed for the division of this one-sixth of the estate. The claimants, with the exception of Frederick Graham's trustees, i.e., Humphrey Graham and Miss Susan Graham and her sister's trustees, claimed each one-fourth of this share. There was another competitor, William Henry Graham, who insisted that the division should be into five parts, so as to let in him; and the trustees of Frederick Graham, concurring in that view, also claimed one-fifth, while, if they had chosen, they might have claimed one-fourth like the other claimants. It seems to me that if a record is closed in these circumstances, and the judgment of the Lord Ordinary pronounced, giving effect to one construction of the settlement, it is impossible for a party then to alter his ground, and to say, “I have begun to see that my construction is wrong, and that another construction is better for me than my own.” I think it is not competent to open up a record so as to enable a party to make a change of ground in that way. There is no contenance for that contention to be derived from the case of Ferguson's trustees. That was a case of a different character. There was no proper competition there, and no judgment on the competition, the only judgment was between the trustees and certain legatees. The interlocutor of the Lord Ordinary was brought up on a reclaiming note, asking the Court to consider the whole matter of the sound construction of the deed, and the trustees were quite entitled to present that reclaiming note and have it considered. In these circumstances, the Second Division, finding that the claims thus brought up proceeded on a false principle of law, remitted to open up the record, but that was necessary for a proper distribution of the estate. But that does not apply here. The trustees of Frederick Graham have themselves to blame for having made their claim with their eyes open. I am therefore for refusiug the motion.

Lord Curriehill concurred.

Lord Deas—I am of the same opinion. There were a great many elements in the case of Ferguson's Trustees, the combination of which justified the judgment, although even then the result was reached with difficulty. But this case differs in many respects. I do not mean to go into the details of the case, for that would require to be done very fully or not at all, but, having looked into that case, I think it essentially differs from the present.

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