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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Blair's Executors and Others [1876] ScotLR 13_217_1 (18 January 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0217_1.html
Cite as: [1876] SLR 13_217_1, [1876] ScotLR 13_217_1
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SCOTTISH_SLR_Court_of_Session
Page: 217↓
Court of Session Inner House Second Division.
Facts:
A testator gave and bequeathed all the estate and effects which should belong to him at the time of his death to his father, whom failing by death to his brothers and sisters nominatim, share and share alike. The testator's father and two of his brothers predeceased him, one of the brothers leaving issue— Held ( diss. Lord Gifford), in a Special Case submitted by the issue of the predeceasing brother and the surviving brothers and sisters of the testator, that the former were not entitled to any share of the estate, as the conditio si sine liberis did not, apart from special circumstances, extend to the case of collaterals.
The late Charles Cunningham, sometime merchant in Smyrna, afterwards H. M. Consul at Galatz, and who died at Galatz on or about 26th November 1860, left a will dated 17th January 1825, in the following terms:—“I, Charles Cunningham, son of James Cunningham,
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of Bonnington Mills, in the county of Edinburgh, in North Britain, now about to settle as a merchant at Smyrna, in the Turkish dominions, do hereby, in the event of my death, give and bequeath all my estate and effects of every description, and wherever situated, which shall belong to me, or to which I shall be entitled at the time of my death, unto the said James Cunningham, my father, and failing him by death before me, unto Archibald Cunningham, John Cunningham, George Cunningham, Margaret Cunningham, Janet Cunningham, Andrew Cunningham, and Mary Cunningham, my brothers and sisters, equally among them, share and share alike.” The parties named in this will were the whole brothers and sisters of the deceased.
The testator was predeceased by his father James Cunningham and his brothers Archibald and John, the latter of whom died leaving children. Between these children and the surviving brothers of the testator a dispute arose as to the division of his personal estate-the former maintaining that they were entitled to take their father's share by virtue of the condition si sine liberis, and to share in the proportion of the estate which would have fallen to their uncle Archibald had he survived the testator.
This Special Case was accordingly brought, and the following questions were submitted for the opinion and judgment of the Court:—“(1) Whether the shares of the estate of the late Charles Cunningham provided by him to his brothers Archibald and John, who predeceased him, or either of these shares, have lapsed into intestacy? (2) Whether the brothers and sisters of Charles Cunningham who survived him have right to these shares to the exclusion of the children of the said deceased John Cunningham? Or (3) Whether the children of John Cunningham have right to the share of the testator's estate provided to their father? And (4) Whether they have right to a proportional part of the share provided to their deceased uncle Archibald Cunningham?”
Argued for the children—The application of the conditio si sine liberis has been upon equitable grounds extended beyond the case of direct descendant. The bequest here is not of the nature of a legacy, but of a family provision, and there is a strong presumption that the testator intended to benefit the children of predeceasing brothers and sisters.
Argued for the brothers and sisters of the testator—The conditio si sine liberis has only been extended to those to whom the testator was in loco parentis. The party claiming the benefit of this legal presumption must either be a descendant or in the place of a descendant. The extension contended for here is not warranted by the authorities.
Cases cited— Chancellor v. Mossman, July 19, 1872, 10 Macph. 995; Hamilton v. Hamilton, Feb. 8, 1838, 16 Shaw, 478; Christie v. Patersons, July 5, 1822, F.C., 1 Shaw, N.E. 498; Bhind's Trustees v. Leith and Others, Dec. 5, 1866, 5 Macph. 104; M'Call v. Dennistoun, Dec. 22, 1871, 10 Macph. 281; Macgown's Trustees v. Robertson, Dec. 17, 1869, 8 Macph. 356; Wallaces v. Wallaces, Jan. 28, 1807, M. voce “Clause,” Appendix, No. 6; Dixon v. Dixon, 9 Feb. 1841, 2 Rob. App. 1; Rattray v. Blair, Dec. 8, 1790, Hume 526; Thomson v. Scougalls, 31 Aug. 1835, 2 Shaw and M'Lean, 305; Erskine, iii. 8, 46; Bell's Principles, 1882; M'Laren on Wills, i. 682, Digest 35, i. 102; Code vi. 42, 30.
At advising—
The conditio has been held to apply when the settlement is universal—when the provision is of the nature of a family provision, and when the testator is at least in loco parentis. The effect of these elements rests upon two principles—First, the delectus personœ implied in a nominatim bequest is excluded when the bequest is to a class; and secondly, when of the nature of a family provision there is a presumption that the testator prefers the children of the beneficiaries to any substitute or conditional institute that may be named.
But it has also been decided that where the legacy is specific—when the legatees are called not a class but nominatim, and when the testator does not stand in loco parentis—the conditio will not apply, upon the manifest principle that a bequest to A, whom failing to B, without mention of A's heirs, goes to B in the event of A's death before the testator.
In this case there are three circumstances unfavourable to the application of the conditio. In the first place, the brothers and sisters are themselves conditional institutes, the father being the original beneficiary. It is not likely that when one conditional institution is expressed another should be implied. In the second place, the legatees are called by name. In one sense they may be said to be a class, because they were all the children of the marriage, but still they are legatees nominatim. And in the case of Hamilton v. Hamilton that was considered an element of sufficient importance to render the conditio inapplicable. I would refer to the remark of Lord Glenlee upon this point in that case. In the third place, this is not a provision to children in any sense. It cannot come under that category. It is quite different even from the bequest to the children of a stranger, Which may be of the nature of a family provision.
This leads me to the question, whether in the case before us the testator may be said to be in loco parentis, and if not, whether the conditio applies to the case of collaterals, and if so, whether it is of universal application? It may be that we do not follow the civil law in all particulars. If we did, the question would be settled by that law and the commentators upon it. I may specially
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I am not aware of any system of law in which the conditio would be held applicable to a bequest by a brother to a brother. The present affords a strong instance of how remote the case of a brother is to that conjeclura pietatis on which the conditio applies. Is it to be assumed that the testator's affection for his brothers and sisters was less than his affection for their possible issue, whom he might never see? The probable inference is that he intended his surviving brothers and sisters to take the bequest.
The case of Fleming v. Martin, M. 8111, comes very close to the present. The Court in that case refused to give effect to the conditio in favour of the children of a predeceasing sister. It is quite true that a bequest to a nephew may imply the conditio si sine. That was decided in the case of Wallace and in the recent case of Macgown's Trustees. In that latter case Lord Benholme makes some important observations upon this matter. He says:—“The inclination of our law is to extend the maxim si sine liberis, but the limits within which it is applicable are not very distinctly fixed. In the case of nephews and nieces called collectively it has been held to apply; but it is not so clearly applicable to the case of individuals of a class called nominatim. A distinction has been taken between persons chosen out of a class and a whole class called collectively.”
There are several cases, however, in which the application of the conditio has been refused in the case of nephews and nieces. There is the case of Wishart v. Grant (June 16, 1763, M. 2310), and of Sturrock v. Binney (Nov. 29, 1843, 6 D. 117), which turned on the fact that the mother of the children who claimed was not alive at the date of the execution of the settlement. The Court held, although Lord Moncreiff differed, that, as it was impossible to hold that the mother, who had predeceased the execution of the settlement, had been instituted, there was no room for conditional institution. Then came the case of Rhind's Trustees v. Leith and Others, which turned upon the fact that the mother of those who claimed under the conditio had never been instituted, she having been dead at the date of the settlement, but in which the present Lord President expressed a doubt whether the conditio could be applied to cousins of the testators under any circumstances.
If, however, the case of Christie v. Patersons is to be held as settling the law, it would raise a difficulty in the way of our judgment. There the Court by a majority applied the conditio to the case of cousins of the testator—Lord Balgray and Lord Succoth dissenting. Both these Judges were of opinion that the conditio never applied to collaterals, but the majority of the Court held the case to be ruled by that of Wallace. Lord Balgray observed:—“There is nothing in the case of Wallace like to this. There it was a family settlement—all the children survived the testator, and the day of payment only was suspended.” That last observation is quite correct. It is not clear that that judgment did not proceed upon the ground that the provision had vested rather than on the application of the conditio. Lord Balgray continues—“The case of Holt v. Mackenzie (Feb. 2,1781, M. 6602) is more similar. These principles of equity are only extended to cases of ascendants and descendants, and where ex pietate one of the parties is in loco parentis.” Lord Succoth says:—“The presumption si sine liberis is confined to ascendants and descendants both in the civil law and in ours. There is a legacy to a collateral, who is in law a stranger, and is regulated by a different principle.”
The opinion delivered by Lord Gillies in this case is well worthy of attention, for if it be sound it is quite sufficient for the determination of that case. He is reported to have said—“I cannot admit that there is any distinction in principle between the parties being first and second cousins or more distant collaterals. The same principle applies to all. In Wallace's case the argument of the successful party was founded on the presumed intention of the testator. That is truly the principle—if there be one—which was affirmed by that somewhat remarkable decision. If it does not require any specific relationship between the testator and the beneficiary, we may discard the conjectura pietatis altogether.” I am rather surprised at the decision in Christie v. Patersons, because in the case of Neilson v. Baillie (June 4, 1822, 1 Shaw, N.E. 428), decided a month before, the same Judges are reported to have delivered opinions not easily reconcileable with their opinions in the case of Christie v. Patersons. Lord Hermand, who was of the majority in the latter case, said in that of Neilson—“The presumption of the existence of the condition si sine liberis is founded upon the pietas paterna, and extends to grandchildren as well as children.” The Lord President said—“I am not so clear that the presumed pietas extends to the case of grandchildren; and as to them, I think that it is carried too far by Papinian, particularly in the case of grandchildren by a daughter who is of another house, and there is no obligation on the grandfather to provide for them. The duty falls on their own father.”
The case of Christie had elements in it which are not in the present case. It was truly a provision to children. The whole question has been reconsidered in the case of Rhind's Trustees. Following that case, I am of opinion that the conditio does not apply to collaterals. It may be implied from the words of the deed, but that is a different matter. As far as the presumption is concerned, it does not apply unless the testator be in loco parentis and the provision a family one, and this not the case when the beneficiaries are brothers and sisters.
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It may have been extended beyond its original limits, but never so far as to make it a matter of no importance whether the legatee be a descendant or a stranger. And if we are to stop further extension we should stop it now. There are no elements in the present case which warrant the application of the conditio. This is neither a case of ascendants nor descendants, nor of nephews who are in the position of the children of their uncle. I see no reason therefore why we should extend this presumption to the present case.
The father, the institute in this settlement, and also two of the brothers, John and Archibald, the former leaving issue, having predeceased the testator, the question which has been submitted to the Court, and very fully and ably debated, is, whether the share of the testator's estate which would have gone to his brother John, had he survived him, now belongs to the issue of John in virtue of the implied condition si institutus sine liberis decesserit, or to the surviving brothers and sisters.
In dealing with this question it is necessary to keep in view that the principle which underlies the Roman law maxim referred to, and which has been recognised as of force in our own law, is the implied or presumed will of the testator. But, for obvious reasons, the implied will of a testator ought not to be superinduced upon what he has expressed, except in circumstances making it clear that his true intention is not thereby violated and a settlement made for him which he would not have made for himself. Accordingly the authorities—the institutional writers as well as the decisions of the Court—shew that it is only within certain limits and subject to certain qualifications that the will or settlement of a party can be dealt with except in accordance with its express terms, in order that other terms not expressed should be held as implied and given effect to. I think, however, it is difficult to say on the authorities what are the limits or qualifications appertaining to this matter, or whether they can with certainty and precision be defined.
It has been stated that the implied condition can only be given effect to in circumstances which denote the pietas paterna, as in destinations by a parent to children or descendants in the direct line. But the cases shew that the implied condition has been applied to questions arising between parties standing in other relations—for example, in the collateral degree of relationship of uncles and nephews, where the granter of the deed has been held to stand in loco parentis to the beneficiaries, and also in some cases where it is called conjectura pietatis it has been held to operate as when the distination is expressly to children as a class, although the granter of the deed is not their father, and cannot properly be said to stand to them in loco parentis. But in the present case it is obvious that pietas paterna does not apply, and also that the granter of the deed does not stand in loco parentis to the beneficiaries whom he has named and called. And as to the principle of conjectura pietatis, I have not been able to discover any instance where it has been held to apply in circumstances similar to those which occur in the present case, where the difficulty arises from the circumstance of the will or testament being not by a father but by a brother, and not in favour of children or descendants, but an ascendant, the testator's father, whom failing by his predeceasing the testator, to his brothers and sisters, who are individually called and named. None of the precedents—and they were very numerous—cited at the debate were, I think, precisely of this nature. Some of them, however, show that the principle of implied condition has been given effect to in favour of nephews and nieces of the testator, and that is the position of the claimants in the present case, arising in consequence of their father, as well as the father of the testator, having predeceased him. That the second parties claiming stand in this position, and are not direct descendants of the testator, would not of itself be sufficient to exclude their right in virtue of the implied condition si sine liberis decesserit, I consider to be now clear on the authorities, whatever doubt may have been entertained at one time on the subject, even although it may have been, as I think it was, an extension of the doctrine as it was at first understood. But I am not aware, and am unable to hold, that this extension of the doctrine to collaterals is applicable, or can on authority or principle be sustained, under such a destination as that in question—a destination not to children as a class, or to children at all, or even to nephews or nieces, but to brothers and sisters individually named and called. It was indeed conceded in argument that there was no decided case exactly in point, unless it be that of Christie and Others v. Patersons, 5th July 1822, 1 Shaw 543. The circumstances, however, of that case were materially different from those of the present. There the institutes called were the children generally as a class of the testator's mother, there being no delectus personarum indicated, except such as might be inferred to have very naturally existed in regard to the descendants of the testator's brothers and sisters, to whom generally and as a class he expressly destined his estate. And that children may in such and similar destinations be held, according to circumstances, to include grandchildren is shown in the case of Rankine and Others, 17th June 1870, 8 Macph. 278, and of Houston, noticed in foot-note to Wemyss v. Gray, and Others, 23d November 1810, F. C. But in the present case the delectus of the testator is shown by his having left his estate not generally to his brothers and sisters as a class, or to the children of the “father generally and as a class, but to five brothers and sisters individually called and named by him. It may be true, as was stated in the course of the debate, that the individuals so called and named were all the brothers and sisters of the testator, but the father might, although he had not, have again married, and had other children subsequent to the date of the testator's will. I think therefore, for these reasons, that the case of Christie v. Patersons is distinguishable from the present, and
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For all these reasons, and chiefly for the reason that it makes no mention at all of children, but is simply a destination to the testator's father, whom failing to his brothers and sisters specially called and named, I am unable to find that the children of the testator's brother John who predeceased him are to take the place of their father in the succession which has opened. On the contrary, in my opinion the share intended for John, had he survived the testator, must in consequence of his predecease be held to have lapsed into the general estate, and as such falls to be divided amongst the testator's brothers and sisters who survived him.
There is another ground upon which, in the special circumstances of the present case I should be disposed to hold that the issue of John Cunningham who predeceased his brother, the testator, is excluded from the succession. The presumption upon which the implied condition involved in the maxim si sine liberis decesserit is raised, is not absolute, but may be rebutted by, and must yield to, other and stronger presumptions. That such is the law is stated by Mr Erskine in his Institutes, book iii. tit. 8, sec. 46, and by Mr Bell in his Principles (sec. 1778), and is illustrated by decided cases. Thus, in Yule v. Yule, 20th December 1758, Mor. 6400, it was ruled that the condition si sine liberis did not take effect where a father who while unmarried, and after he had taken certain bonds payable to himself, whom failing in favour of his brother, married and had children, and yet did not alter the bonds, although he survived their date three years and the birth of his oldest child two years. It is true that there the bequest was of a special legacy and not of the universitas of the testator's estate; and it is not to be disputed on the authorities that this is an important element militating against the admission of the implied condition. But in the case of Watt v. Jervie, 30th July 1760, Mor. 6401, which occurred soon after that of Yule, it was held that a settlement by a man of his whole effects on his wife was not voided by the birth of a child five weeks after his death, although the father had disposed of the universitas of his estate to the prejudice of his child, for the reason, so far as can be collected from the report, that he must have known of the pregnancy of his wife, and had an opportunity of altering his settlement, but did not do so. Now, the circumstances of the present case are still more favourable for the operation of the same principle of decision. Here the testator's settlement was executed in 1825, and he lived thereafter till November 1860, a period of thirty-five years. John, the testator's brother, died in September 1838, about twenty-two years prior to the death of the testator. But the testator made no alteration on his settlement. In this state of matters the presumption is much stronger than in the cases referred to, that the testator did not intend that the issue of his brother John should take the place of their father. Indeed, it is more probable that he should prefer the surviving brothers of John, whom he personally knew, and in family with whom he must for some time have lived, to the children of John, to whom he was under no obligation, and for anything that appears for whom he could have had no particular regard. I am disposed to hold, therefore, that the presumption involved in the maxim si sine liberis decesserit must, even if it had otherwise applied, be held to be overcome and excluded by what I think the stronger presumption afforded by the special circumstances of the case; and I do not see how any other conclusion could be come to consistently with the decisions in the cases of Yule v. Yule and Watt v. Jervie, to which I have referred.
The result is that, in my opinion, the second question in the Special Case ought to be answered in the affirmative, and this, I think, renders any answer to the other questions unnecessary.
On the question of the condition si sine liberis, hovever, I have felt very great difficulty indeed, and although it is with great hesitation and doubt that I venture to differ from your Lordships, I feel myself unable to concur in laying down the rule or principle which I understand to be indicated in the opinions which have just been expressed, that in general, and apart from special circumstances, the condition si sine liberis will not be held as implied where a testator names his brothers and sisters as his residuary or universal legatees. I hesitate to adopt a rule which, whatever its convenience, I scarcely think warranted either in itself or with reference to the authorities and decisions which have been pronounced. In the present case I incline to think that, looking to the whole circumstances—the terms of the testament in question, the position
Page: 222↓
Two cases seem to be clear upon the authorities. When legacies or shares of residue are bequeathed by a testator to strangers in blood, or even to distant relatives nominatim, without any mention of children or issue, such legacies lapse by the legatee predeceasing the testator, and cannot be claimed by the children or heirs of the legatee. The bequest is held to be personal to the legatee himself, to have been given from personal affection or upon personal grounds, and it does not go to the legatee's children when the legatee himself predeceases the testator, unless the will expressly so provides. The general rule holds that legacies lapse by the predecease of the legatee.
The other case seems equally clearly fixed by the authorities, that when a father makes provisions, whether by way of legacy or by share of residue or otherwise, for his child or children or for his grandchild or grandchildren or other descendants, and the children or grandchildren so favoured predecease the testator leaving issue, such issue will take their parent's provision or share unless the testator has expressly excluded them. The conditio si sine liberis is always held implied in bequests or provisions to descendants, but not in the case of bequests or provisions to strangers. Of course if there is any clause in the deed explaining the testator's intention, that must be given effect to. I am only dealing with cases where the deed is silent.
The cases attended with difficulty are those intermediate between the two classes I have just specified, that is, where the bequest is not to strangers nominatim or to children or descendants, but to collateral relatives either called by name or as a class, and here it is very difficult to lay down a satisfactory principle.
It seems to be fixed that in a bequest to nephews and nieces of the testator, if some of them predecease the testator leaving issue, such issue will in general take their parent's share, and this seems to hold not only where they are called simply as a class, as for example, “to all my nephews and nieces,” or, “to all the children of my brother,” or in such similar way, but also in the case where the nephews and nieces are named, provided that the enumeration embraces the whole nephews and nieces, so as not to raise any indication that some are excluded.
The question now raised is whether the same presumption applies to a bequest in favour of the brothers and sisters of the testator. Does a bequest to “brothers and sisters,” without anything else being said, imply a provision that if any of the brothers and sisters predecease the testator, leaving issue, such issue shall take the share which would have belonged to their parent if he or she had survived the testator. Now, on the whole, and though not without great hesitation,—all the greater that I am differing from your Lordships—I incline to hold that it does. I shall come to the specialties of the present case immediately. At present I am taking the case quite generally, as if the residuary or universal bequest had run “to my brothers and sisters equally, share and share alike.” Such a bequest, I think, implies that if any of the brothers and sisters predecease, their issue shall take their place.
This is undoubtedly the law in regard to bequests to nephews and nieces. Why should the law be different when the bequest is to brothers and sisters? The only reason given—I think the only reason that can be given—is, that an uncle is in loco parentis to his nephews and nieces, but is not so to his brothers and sisters. This may be true in some cases, or perhaps in many cases, but it is certainly not true in all cases. For example, if a man's own brother is alive and at the head of his family, it can hardly be said that he, the uncle, is in loco parentis to his brother's children; the locus is occupied by the father himself. A man's nephews and nieces, if the children of a much elder brother, may be all older than himself, or in positions which make it unreasonable to say that he is in loco parentis to them, and, on the other hand, in the case of an elder brother, he may be so much older than the other children, especially if only consanguinean, as to be far more in loco parentis to them than he could ever be to nephews and nieces in other circumstances. It is dangerous to make a legal presumption that one person is in loco parentis to another. I rather think that this will always depend upon circumstances apart from the case of direct descendants.
But farther, I scarcely think that even where relationship may raise a presumption of a testator being in loco paternis to beneficiaries, that this is the true principle. I rather think the true principle is, does the testator by the terms of his will place himself in loco parentis, and can it be gathered from the deed that he assumes the duties or the burdens of a parent, and is in this sense and by his own act in loco parentis? If so, and even in the case of strangers in blood, there might be the very strongest reasons for implying the condition si sine liberis. For example, if a testator should use such language as this—“As my adopted son, whom I intend to make my heir, has unfortunately predeceased me, I leave the residue of my estate to his children equally among them.” In such a case as this I should be very much inclined to hold that grandchildren would take if any of the immediate children failed, and this although there was no tie of blood or relationship whatever with the testator. It is true the word children sometimes includes grandchildren or great-grandchildren, but I do not think in the case I have put it would make any or much difference if the testator, instead of merely calling the children of his adopted son, had named them all and described them as such. But there is express decision that the condition si sine liberis applies not only to bequests to nephews and nieces, to whom an uncle may very often be said to be in loco parentis, even when his brother or sister, their parent, is alive, but to the case of a bequest or provision to a testator's cousins. I allude of course to the case of Christie v. Patersone, 1 Shaw 543 (1 Shaw, new ed. 498),
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The specialties in the present case seem to me strongly to favour the claim of John Cunningham's children, though here also I may well hesitate when I find myself in opposition to your Lordships. The testator bequeaths his whole estate, first to his father as sole and universal legatory, and it is only in case the father should die before him that he substitutes for his father his whole brothers and sisters. I think this seems to show that this was because they were all descended from the same father that the brothers and sisters were instituted residuary legatees. It was because they would succeed to the father that the testator made them his own successors, and for the same reason the tie of blood would apply to brother's children. They, too, will take not from personal reasons, but because they are the grandchildren of the testator's father. Still farther, there is no express institution of survivors—the brothers and sisters alone are named to take equally—and nothing is said of survivors, and although in a conjunct bequest the effect may be the same as if survivors had been called, it is certainly a stronger case for the issue of predeceasers taking their parent's share.
On the whole, putting myself in the testator's place, as I am bound to do by the true canon of construction, and reading the testator's words as nearly as I can in the sense in which he must have used them—and this is the way to gather the intention of the testator—I cannot help thinking that he did not intend to provide that if any of his brothers and sisters predeceased him leaving children, such children should be excluded from his succession.
The Court pronounced this interlocutor—
“The Lords having heard counsel for the parties on the Special Case, are of opinion and find—(1) That the two shares of the estate of the late Charles Cunningham provided by him to his brothers Archibald and John, who predeceased him, have not lapsed into intestacy, nor either of them; (2) That the brothers and sisters of Charles Cunningham who survived him have right to these shares, to the exclusion of the children of the said deceased John Cunningham; (3) That the children of John Cunningham have no right to the share of the testator's estate provided to their father; and (4) That they have no right to a proportional part of the share provided for their deceased uncle Archibald Cunningham; and decern.”
Counsel for the First Parties— M'Laren. Agent— John M. Bell, W.S.
Counsel for the Second Parties— Home— Mellis. Agents— Bruce & Kerr, W.S.