Scottish Court of Session Decisions

Lord President— Agnes Hamilton died in I860, and at that time the persons entitled to her succession, as her next of kin, were her thirteen nephews and nieces. The Intestate Succession Act provides—[ reads). It does not apply universally. It only applies in certain cases. The question we have to put to ourselves is,—Does it apply here? Had Mrs Turner survived Miss Hamilton, by common law the moveable estate would have gone to her alone. But she predeceased her sister. Does, then, this case come under the statute? It is a remedial statute, and a remedial statute is always to be construed by the remedy intended. Its object was that where one of the next of kin predeceased the defunct, his issue might take along with the surviving next of kin. In short the statute applies only in such a case. But that is not the case here. None of the next of kin predeceased the defunct here. The statute therefore does not apply. If so, the whole difficulty of this special case disappears. The common law says if an heir in heritage refuses to collate he gets none of the moveables. Here Mrs Turner, Robert Couper, and Thomas M'Donald, take each a third of the heritage, and none of them therefore can take any of the moveables.

Lord Deas—The object of the statute was to remedy the evil alone that your Lordship has stated. The words of the statute are not very clearly expressed; but looking to the common law of Scotland before it was passed, and what was the evil to be remedied, I am inclined to concur with your Lordship's interpretation of the clause.

Lord Ardmillan——The statute gives to the children of a predeceasing next of kin the right of their parent, along with a surviving sister or brother. Mrs Turner herself, however, is, under the circumstances of the case, one of the next of kin. She is not claiming to be admitted to that body; but, being one, she wants to have more than the rest.

Lord Kinloch—I am of the same opinion with your Lordship in the chair; and very clearly so.

The difficulty found in this case has perhaps arisen from its being popularly said that the Intestate Succession Act introduced the representation proper to heritage into moveable succession. But the statute did no such thing. It only introduced a provision to remedy one particular grievance; and what the statute says and does the present case very well illustrates. Miss Agnes Hamilton died and left her next-of-kin in thirteen nephews and nieces. One of these was Mrs Turner, who, if nothing had intervened to bar her claim, would have been entitled to one-thirteenth of the moveable succession. The statute says that “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.” If another nephew or niece had predeceased Miss Hamilton, leaving a child or children, this enactment of the statute would have given that child or children the same share the parent would have had. This is what the statute provides, and all that it provides, in the clause just quoted. But nothing of the kind occurred. All the nephews and nieces survived Miss Hamilton. They all alike share her succession. The contingency of the statute, therefore, never emerged. The statutory purpose was to bring in a person or persons who under the common law had no right, and whose exclusion was felt to be unjust. There is no such case here. Mrs Turner is not excluded; on the contrary, shares with the others. The object now sought to be obtained is not to introduce her into the succession, but to increase her thirteenth to a third, which is quite away from the statutory intent.

There is thus, as I think, no ground whatever for giving Mrs Turner more than the one-thirteenth of the succession, which she inherits in her own right. But as she also has right as heir to a portion of the heritage, she cannot take this one-thirteenth without collating the heritage; and as she refuses to collate, she is thereby shut out from all share of the moveable succession.