Scottish Court of Session Decisions

This was an action of multiplepoinding raised to try the question, what parties were indicated by the term “representatives” employed in an antenuptial contract of marriage entered into between Mr Leslie and Mrs Isobel Sheriffs or Leslie. By that deed, dated 1st November 1832, Mr Leslie disponed, assigned, and made over to and in favour of himself and the said Isobel Sheriff, his intended spouse, in conjunct fee and liferent, and to the children of the marriage equally in fee, whom failing to his own nearest heirs and assignees whomsoever, all and sundry lands, houses, heritages, tacks, heritable bonds, and other heritable property whatsoever then belonging to him or to which he might succeed or acquire right during the subsistence of the marriage; he also thereby assigned, conveyed, and made over to and in favour of himself and the said Isobel Shireffs in conjunct fee and liferent, and to the children of the marriage equally, whom failing, at the death of the longest liver of the spouses, “to be equally divided between the representatives of each of them, the whole moveable goods, gear and effects, debts, and sums of money then belonging to him or to which he may acquire right during the subsistence of the marriage.” On the other part, the said Isobel Shireffs thereby assigned, disponed, conveyed, and made over to and in favour of Mr Leslie the whole subjects and effects, debts, and sums of money, whether heritable or moveable, then belonging to her, or to which she might succeed or acquire right during the subsistence of the marriage, with the whole vouchers and instructions of the said debts, and all that had followed or was competent to follow thereon.

It was further provided by said contract that on the dissolution of the marriage by the death of either of the parties without children, the survivor should be entitled to enjoy the liferent of the whole property, heritable and moveable, then belonging to them, “without interference on the part of the representatives of the predecessor, and that on the death of the longest liver the moveable property so liferented by him or her shall be equally divided between the representatives of both spouses, unless a different distribution shall have been provided by them as therein allowed. Reserving always full power and liberty to the said contracting parties to make any other settlement or distribution than herein provided of the estate and effects belonging to them, unless in so far as the same regards the liferent hereby provided to the said James Leslie and Isobel Shireffs themselves.” No other settlement or distribution was made by Mr and Mrs Leslie.

Mr Leslie predeceased his wife, and there was no issue of the marriage. After his death Mrs Leslie was confirmed executrix qua relict of Mr Leslie, and gave up an inventory of his personal estate and effects, amounting to £1343, 5s. 10d. One half of this sum, with interest accruing thereon since Mrs Leslie's death, under deduction of debts and other preferable claims, formed the fund in medio in this case.

By her last will and testament, dated 12th April 1870, Mrs Leslie, “in order to regulate the management and distribution of my moveable means and estate,” conveyed her whole personal means and estate to the claimant, Mr Manson, who was thereby appointed her sole executor. Mr Manson was directed to pay certain legacies and bequests, and thereafter the residue of the whole estate was bequeathed (subject to any future legacies) to Mr Manson, for behoof of such local, charitable, educational, and religious purposes in or connected with the parish of Meldrum as the testator should specify, or, in the absence of specification, as the said James Manson might select. No reference was made in Mrs Leslie's settlement to the estates falling under and dealt with by the marriage contract. At the time she executed her settlement she had separate personal estate of her own, which was sufficient to meet the bequests mentioned in her settlement.

The competitors for the fund in medio were,—1st, Mr Manson, who claimed the same in respect of his being Mrs Leslie's representative under her last will and testament; and 2d, Mr Walter Hutcheon, and others, who maintained that they were entitled to the fund as her representatives, in repect of their being her next of kin.

On 17th July 1873 the Lord Ordinary pronounced the following interlocutor:—“‘The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, sustains the claim for James Manson, and ranks and prefers him in terms thereof, and decerns in his favour accordingly: Repels the competing claim for Walter Hutcheon and others, and decerns: Finds no expenses due to or by either party.

Note.—… The disputed question turns upon the meaning and effect of the expression ‘representatives’ in the antenuptial contract of marriage of Mr and Mrs Leslie. If the sense in which Mr and Mrs Leslie themselves used the expression, and the effect they intended it to have, could have been collected from their antenuptial contract of marriage itself, taking it in all its clauses, the Lord Ordinary would have held himself thereby bound. But as he cannot find any indications in the marriage-contract sufficient to enable him to ascertain this, and as he is not aware that the term ‘representatives’ has any technical or fixed meaning, he thinks he is entitled, and indeed feels he has been left no alternative, but to interpret it and deal with it according to what he believes to be its natural, ordinary, and legal import. Now, in this view there appears to be no room for doubt that the claimant. Mr Manson, is the ‘representative’ of Mrs Leslie. He has come into her place in virtue of her last will and settlement, and by that deed he is entitled to the whole of her estate, whatever that may be, and represents her accordingly. By so representing her he has become liable, at least to the extent of her succession, for her legacies or bequests, and generally for all her debts and obligations,

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and, as her representative, he must be held, the Lord Ordinary thinks, to be the party meant and pointed out in the antenuptial contract of marriage as entitled, in the circumstances which have occurred, to the fund in question.

In conformity with the meaning thus attached to the term ‘representative,’ the Lord Ordinary finds that the Act 4 Geo. IV. c. 98, ‘For the granting of confirmations in Scotland,’ has been construed. By the first section of that statute it is enacted that ‘in all cases of intestate succession where any person or persons who, at the period of the death of the intestate, being next of kin, shall die before confirmation be expede, the right of such next of kin shall transmit to his or her representatives.’ And in the case of Mann or Smith and Husband v. Thomas, 8 Shaw, 468, it was held that where one of the next of kin of an intestate defunct died unconfirmed, but had executed an assignation of his share in the moveable succession, the assignee was entitled to claim that share under the statute 4 Geo. IV. c. 98, in preference to a party who was confirmed executor qua next of kin both to the deceased cedent of the assignee and to the intestate. In that case Lord Coreliouse, as Ordinary, remarked that, ‘in a legal sense, “representatives” may include those who take by deed as well as by intestate succession.’ And in the English case of Crawford's Trust, 2 Drewry's Chancery Cases, p. 230, Vice-Chancellor Kindersley, in an elaborate judgment in which he reviewed all the authorities bearing on the matter, decided, on principles which appear to the Lord Ordinary to be equally applicable here, that where the testator gave the residue of his property to his daughter for life, and after her death a twelfth of such residue to be equally divided amongst all his cousins-german then existing, or their ‘representatives,’ that the testator intended to use the word ‘representatives’ in its ordinary legal sense, and that the executors or administrators of the cousins-german, and not the next of kin, were entitled to the twelfth part of the residue.

Having regard to these authorities, as well as on general principles of construction, the Lord Ordinary must hold that the claimant Mr Manson, as her executor confirmed, and as such the representative of Mrs Leslie, has been justly preferred to her next of kin in the present case. In truth and reality, her next of kin are in no sense her representatives. They have neither taken nor could take up any of her estate, and do not say that they have or could have done so. They do not, therefore, in that or in any other way, come into her place, or can be said to represent her to any effect whatever. They are related to her, it is true, and in blood are her next of kin, but that is all.”

The defeated claimants, the next of kin, reclaimed, citing as an authority the case of Stewart, 21st May 1802, F.C.

At advising—