Scottish Court of Session Decisions

The facts of this case, as stated on record, were as follows:—The late Mr Alexander Irvine, merchant in Aberdeen, died on the 19th day of December 1849, leaving five holograph testamentary writings, of dates the 8th October 1842, 10th December 1844, 1st April 1846, 24th December 1847, and 7th November 1849, all recorded as probative writs in the Sheriff-court books of Aberdeenshire, 12th December 1849. Some of the executors named in the earlier writings having died, others were substituted by the testator in their place, and the Reverend Alexander Irvine, minister of the parish of Crimond, Aberdeenshire, the first party, is now the sole surviving executor. By the testamentary writing dated 8th October 1842, along with tha dated 10th December 1844, the testator, after leaving some annuities and a legacy, all of which lapsed by the predecease of the annuitants and legatees, disposed of the residue of his rneans and estate. After the testator's death a state of his affairs was made up, showing the value of his estate, and the amount of debts due by him; and the executors thereafter gave up an inventory of the estate. The estate consisted entirely of moveable property. Shortly after the testator's death the executors drew up a scheme of division of the estate according to the terms of the will, and proceeded to realise the estate, and to pay the proceeds as realised to the residuary legatees, in terms of the directions to that effect contained in the will, with the exception of the shares falling to the testator's nephew, Thomas, and nieces, Margaret and Ann, all of whom survived the testator. The Reverend Alexander Irvine, the first party, and his co-executors, retained those shares falling to Thomas, Margaret, and Ann, in virtue of the powers to that effect given by the testator, and the same were invested by the executors, as realised, in heritable securities and otherwise, in their own names, as executors of the testator; the interest or income thereof, and also portions of the principal, being paid over to those residuary legatees, who were made aware from time to time, by the executor's agent, of the nature of the investments from which the interest remitted to them was derived. The amount of the funds now in the hands of the first party, as executor foresaid, is £2181, 11s. 11d., or thereby. Thomas Irvine died on the 12th February 1862, leaving no children, but survived by his wife, when the portion of his share left in the hands of the executors came to be divided, in terms of the said Alexander Irvine's will. In consequence of a claim by the said Thomas Irvine's executors on the funds in the hands of the said Alexander Irvine's executors, they raised an action of multiplepoinding, in which action the Lord Ordinary ( Barcaple) pronounced an interlocutor which is now final. The persons preferred to the fund were, with one exception, either the testator's nephews and nieces, or the families of such as predeceased. The exception was the case of the executors of a child of one of the families who had predeceased; but as said child was unmarried and left no will, the other members of the family participated equally in the share preferred to said child, it being thus the same whether said child's executors claimed or the survivors of the

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family had claimed for the full share, and there was no discussion on this matter before the Court. Ann Irvine (Mrs Garrow) died shortly afterwards, and her share was divided in terms of the decision above referred to regarding Thomas Irvine's share. Margaret Irvine (Mrs Smith) has also now died, leaving no husband nor family, and intestate; and the parties now desire the opinion and judgment of the Court in regard to the division of her share. Since the division of the shares held in trust for Thomas Irvine and Ann (Mrs Garrow), several changes have taken place in the families of the testator's nephews and nieces. There were originally four nephews and two nieces of the testator, besides Mrs Smith. Of these the Reverend Alexander Irvine, the first party, alone survived Mrs Smith. Janet Irvine or Drimmie, one of the nieces, left three children who survived Mrs Smith; and Ann Irvine or Garrow, the other niece, left seven children, four of whom survived Mrs Smith, and three predeceased her, two of them leaving issue. Francis Irvine, one of the nephews, left three sons and two daughters, who also survived Mrs Smith. Thomas Irvine, another of the nephews, died on the 12th February 1862, as previously mentioned, and left a widow, Mrs Margaret Colter or Irvine, but no family. He also left a testament appointing executors. Having predeceased Mrs Smith without leaving family, no part of Mrs Smith's share of the residue of the truster belongs to him or his representatives. The remaining nephew of the testator, James Irvine, had three sons and two daughters. Of these, John Irvine, the second party, alone survived Mrs Smith. Louisa Irvine, one of the said James Irvine's daughters, married her cousin, William Garrow, Liverpool, and died on 23d February 1872, leaving a family of four daughters, viz.:—Louisa Ann Garrow, Edith Barbara Garrow, Meta Norrie Garrow, and Alexandrina Maude Garrow, who are in minority, and for whom the said John Irvine, the second party, is administrator. Alexander Irvine, another son of the said James Irvine, who died at the Fiji Islands in the year 1870, is believed to have left a widow and child, also a settlement bequeathing the whole of his estate to his wife. The other two children of the said James Irvine died unmarried. The parties hereto are agreed that Mrs Smith's share of the residue of the testator falls to be divided into five equal parts, one-fifth thereof being payable to the Reverend Alexander Irvine, the first party, the sole survivor after Mrs Smith of the nephews and nieces of the testator; another fifth thereof being payable to the children of the said deceased Mrs Janet Irvine or Drimmie, who survived Mrs Smith; and another fifth to the children of the said deceased Francis Irvine, who survived Mrs Smith. But, as regards the one-fifth thereof payable to the family of the said deceased James Irvine, a question has arisen as to the right of the children of those members of that family, who predeceased Mrs Smith, to participate therein in place of their parents respectively. The parties interested in this question are John Irvine, the second party hereto, on the one hand, and the above named four daughters of the said deceased Louisa Irvine or Garrow, and the child of the said deceased Alexander Irvine, on the other hand. As regards the one-fifth part payable to the family of the said deceased Mrs Ann Irvine or Garrow, the position of that family, with reference to this matter, is exactly the same as that of the said deceased James Irvine's family, two members of the family having predeceased Mrs Smith, leaving issue.

The questions of law presented for the opinion of the Court were as follows:—“(1) Whether the second party is entitled, as the sole survivor of James Irvine's family at the date of Mrs Smith's death, to receive the whole share payable to that family on Mrs Smith's death? or (2) Whether the first party hereto is bound to reserve out of the said share, for behoof of the children of the said deceased Louisa Irvine or Garrow, and of the child of the said deceased Alexander Irvine, the proportions thereof which would have been payable to the said Louisa Irvine or Garrow and Alexander Irvine respectively, if they had survived Mrs Smith?”

At advising—