Scottish Court of Session Decisions

This was a Special Case presented for the opinion of the Court by the following parties—viz., Mr Ewart, factor and commissioner for James Hawkins, eldest son of the deceased Robert Hawkins senior, and also factor and commissioner for the eldest son, and executor of Samuel Proudfoot Hawkins, another son of Robert Hawkins senior, of the first part; and Mrs Cottom and others, granddaughters, grandnephews, and neices of the said deceased Robert Hawkins senior, of the second part.

The following were the facts agreed on by the parties:—“The said parties respectfully submit the following statement of facts, adjusted and agreed upon by them, for the opinion of the Court, upon the questions after stated:—The late William Bell of Sinclairburn, in the county of Dumfries, surgeon in the Royal Navy, and Mrs Janet Hawkins, residing at Sinclairburn, his wife, by their mutual disposition and deed of settlement, dated 1st September 1849, gave, granted, assigned, disponed, and made over from them, their respective heirs and successors, to and in favour of the longest liver of them, and the disponees and assignees of such longest lives, all and sundry lands, heritages, and heritable subjects then belonging to them or either of them, or which might belong to them or either of them, at the death of the first deceaser of them; also all and sundry goods, gear, and effects in communion then belonging, or which might at the death of the first deceaser belong to them or either of them; and declaring that the longest liver of said William Bell and Janet Hawkins should have full and uncontrolled power to dispose of the foresaid subjects or any part of them, at pleasure, by any disposition and assignation, gratuitous or otherwise; and should the longest liver of them execute no disposition and assignation of the foresaid subjects, heritable and moveable, generally and particularly thereby conveyed, or should such longest liver execute a disposition and assignation of part of them only, then they thereby declared that on the death of such longest liver one-half of the said subjects, or of what of them might not have been disponed and assigned by the longest liver of them, should belong to and be the property of . . and the other half thereof should, in equal portions, one-third to each, belong to and be the property of the executors of the deceased Robert Hawkins senior, sometime blacksmith in Lockerbie, father of her, the said Janet Hawkins, the executors of the deceased John Hawkins senior, sometime blacksmith in Glasgow, uncle of the testators, and Jean Hawkins, wife of

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Samuel Proudfoot, in Marchbank, their aunt, or her executors. Mrs Janet Hawkins or Bell died in April 1864, and the said William Bell on 16th January 1867. There was no issue of the marriage. At and for some time previous to Mrs Bell's death, Mr Bell was in a state of complete mental incapacity, from which he never recovered. No further disposition and assignation or other settlement was ever executed by Mr and Mrs Bell, or either of them. There was no question involved regarding the first half or moiety of the estate bequeathed to Mr Bell's executors and to Margaret Hart Hotchkis. Of the second half or moiety of the said estate, dealt with in the final destination contained in said deed of settlement, one-third was declared to belong to and be the property of the executors of the deceased Robert Hawkins senior. He was twice married. By his first marriage he had only one child, the said Janet Hawkins or Bell, the testatrix. By the second marriage he had four sons—viz., Robert Hawkins junior, blacksmith, Manchester, who predeceased the said William Bell, leaving a family; John Hawkins, manager of Steel Works, Sheffield, who also predeceased Mr Bell, leaving a family; Samuel Proudfoot Hawkins, of Melville Forrest Station, Victoria, who survived the said William Bell, but had since died, leaving a family; and James Hawkins, teacher, now in Portland, Victoria. Of the family of the said Robert Hawkins junior, the said Mrs Penelope Hawkins or Cottom was the only known survivor. The children of John Hawkins were the said Mrs Barbara Hawkins or Manson, Mrs Margaret Hawkins or Milwain, Mrs Fanny Hawkins or Rae, and Robert Hawkins or Greendale, all parties hereto. These persons, Mrs Cottom and others, were therefore grandchildren of Robert Hawkins senior, blacksmith in Victoria. By the Act 18 Vict., cap. 23, eutituled ‘An Act to alter in certain respects the Law of Intestate Moveable Succession,’ it is enacted (section 1) that ‘In all cases of intestate moveable succession in Scotland accruing after the passing of this Act, 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, and the issue of any such child or children, or of any descendant of any such child or children, who may in like manner have predeceased the intestate, shall come in the place of his or their parent predeceasing, and shall respectively have right to the share of the moveable estate of the intestate to which the parent of such child or children, or of such issue, if he had survived the intestate, would have been entitled: Provided always, that no representation shall be admitted among collaterals after brothers' and sisters' descendants, and that the surviving next of kin of the intestate claiming the office of executor shall have exclusive right thereto, in preference to the children or other descendants of any predeceasing next of kin, but that such children or descendants shall be entitled to confirmation when no next of kin shall compete for said office.’ In these circumstances, the question was raised whether Samuel Proudfoot Hawkins and James Hawkins, as the only surviving children and next of kin of Robert Hawkins senior, at the opening of the succession upon Mr Bell's death, and therefore entitled to claim the office of executor in preference to the said children of their deceased brothers, were the parties to whom said destination in favour of the executors of the deceased Robert Hawkins senior, applied; or whether the said destination included and applied also to the children of the predeceasing next of kin, as heirs in mobilibus, and entitled, in room of their parents, to a share of the executry funds and estate of Robert Hawkins senior, who died intestate? No question arose as to the third of said moiety of the estate bequeathed to the executors of the deceased John Hawkins senior. The remaining third of said moiety was, by said mutual deed of settlement, declared to belong to and be the property of ‘Jean Hawkins, wife of Samuel Proudfoot, in Marchbank, our aunt, or her executors.’ Jean Hawkins and Samuel Proudfoot both predeceased William Bell, without leaving any issue. Jean Hawkins or Proudfoot had only two brothers, who both predeceased her—viz., the said Robert Hawkins senior (whose children and grandchildren have been before specified), and John Hawkins senior, sometime blacksmith in Glasgow. John Hawkins, senior had two sons, William and John Hawkins, both of whom predeceased Dr Bell. John died without issue, but William left a family, of whom there were, at Dr Bell's death, and still are surviving, the foresaid Christina Hawkins, Marion Hawkins or Moffat, John Hawkins, and William Hawkins, who were grandchildren therefore of John Hawkins senior. At the death of the said William Bell, Samuel Proudfoot Hawkins and James Hawkins were the nephews and next of kin to the said Jean Hawkins or Proudfoot, and entitled in the first instance to claim the office of executors to her, under the foresaid Act, in preference to the grandchildren of her deceased brothers; and the question in like manner arose, whether the said Samuel and James Hawkins should take the share of said estate destined to Jean Hawkins or Proudfoot or her executors, or whether the other parties, the grandchildren of Robert Hawkins senior, and John Hawkins senior, as heirs in mobilibus, in room of their grandparents, were entitled to participate with Samuel and James Hawkins in the share of Mr Bell's estate destined to Jean Hawkins or Proudfoot or her executors.”

The following were the questions for the opinion of the Court:—

“(1) Under the said destination in Mr and Mrs Bell's deed of settlement in favour of the executors of the deceased Robert Hawkins senior; Are his sons, the said Samuel and James Hawkins, who were alive at Mr Bell's death, entitled to succeed; or are the children of his deceased sons—viz., Mrs Cottom, Mrs Manson, Mrs Milwain, Mrs Rae, and Robert Hawkins, entitled to participate with the said Samuel and James Hawkins in the succession? (2) Under the said destination in favour of Jean Hawkins or Proudfoot, or her executors; Are her nephews, the said Samuel and James Hawkins, sons of her deceased brother Robert, who survived the said Mr Bell, entitled to succeed; or are the grandchildren of her said deceased brothers Robert and John entitled to participate in said succession?”

The Solicitor-General and Johnstone for the first parties.

Shand and Gebbie for the second parties.

The following cases were referred to:— Nimmo v. Murray's Trs., 1864, 2 Macph. 1144; Maxwell, 24th December 1864, 3 Macph. 318; Stodart, 5th March 1870, 8 Macph.

At advising—