Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Paterson and Another (Macfarlane's Trustees) [1878] ScotLR 16_198 (3 December 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/16SLR0198.html
Cite as: [1878] ScotLR 16_198, [1878] SLR 16_198

[New search] [Contents list] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 198↓

Court of Session Inner House Second Division.

Tuesday, December 3. 1878.

16 SLR 198

Special Case—Paterson and Another (Macfarlane's Trustees).

Subject_1Succession
Subject_2Legacy
Subject_3Falsa demonstratio
Subject_4“Brother James' Son,” where there was only Daughter.
Facts:

A truster bequeathed one-sixth of the residue of his estate to “my late brother James' son.” His brother James left no son but he left an only daughter. Another brother, however, named David, left an only son. Little or no correspondence passed between the testator and the families of these two brothers. Held, in the circumstances of the case—(1) that the bequest was not void on the ground of uncertainty; (2) that as it was more probable that the testator should have mistaken the sex of his brother's child than the name of his brother, James' daughter was entitled to the bequest.

Headnote:

By holograph will, dated 10th June 1875, Alexander Macfarlane directed the residue of his estate to be divided into six portions, as follws:—(1) One portion to his late brother John's three daughters; (2) One portion to his late brother James “son;” (3) One portion betwixt his brother Henry's son and daughter; ( 4) One portion to William S. Macfarlane, his brother; (5) One portion to Peter Macfarlane, his brother; (6) One portion to George Macfarlane, his brother, which, if not claimed within three years, was “to be divided amongst the other five portions.” In the case of the second portion a difficulty arose with respect to the legatee. The deceased's brother James had only one child, a daughter, Mrs Henderson. But the truster's deceased brother David Jobson Macfarlane, left an only ‘son,” William Henry Macfarlane.

The trustees brought this Special Case in order to have it determined, inter alia, to whom they were to pay the bequest, or whether it was altogether void.

The third parties to it, Mrs Elizabeth Macfarlane or Henderson, the only child of the deceased James Macfarlane, the testator's brother, and her husband, maintained that she had the best right, as her father's name was distinctly mentioned and one child clearly indicated, and that the mistake in the sex was unimportant, the legacy being meant for James' child. Moreover, the testator in the settlement named his brothers in proper rotation of their ages, and James was named second, being second oldest.

The fourth party, William Henry Macfarlane, only son of the deceased's brother David Jobson Macfarlane, maintained that he had the best right as being the only son of a deceased brother of the testator named “David Jobson,” but by mistake named “James” in the bequest, the legacy being undoubtedly intended for a son of a brother and not a daughter of a brother. David Jobson Macfarlane was further the only one of the deceased's brothers who had only one son. Otherwise, he maintained that the second portion fell to be treated as intestate succession.

The other legatees under the will, the second parties, maintained that the legacy was ambiguous and ineffectual by reason of uncertainty, and that the portion fell into the general residue, and was divisible among the legatees of the various portions in the same manner as was directed to be done with the sixth portion in the event of its not being claimed by George within the prescribed time; or otherwise, that it was not tested on.

Little or no intercourse or correspondence had ever passed between the testator and his deceased brothers James and David or their families. The testator had regular correspondence with his brothers William and Peter. There was nothing, however, that could be founded on to indicate the deceased's intentions under his settlement farther than the settlement itself bore.

Authorities cited— Ryall v. Hannam, July 1847, 10 Beavan, 536; In re Rickit, July 1853, 11 Hare, 299; Lord Camoys v. Blund-ll, July 1848, 11 Clark and Finelly's H. L. Ca. 778; Drake v. Drake, February 1860, 8 Clark and Finelly's H. L. Ca. 172.

At advising—

Judgment:

Lord Justice-Clerk—The question is to whom the legacy left by the testator in favour of the son of his brother James belongs, or whether it is void from uncertainty? He had a brother James, who had no son, but had a daughter. He had another brother, David Jobson Macfarlane, who had a son. The question is—First, Whether the bequest can be read in favour of the latter? I am very clear that it cannot. A man might easily mistake or forget the name, or even the sex, of his brother's child, when separated, as here, by time and distance; but the names of his brothers he could not fail to remember while he remembered anything. Then, secondly, is there such uncertainty here as will void the legacy? I think there is reasonable certainty that he meant the legacy for his brother's child, and that the mistake in regard to sex is immaterial.

Lord Ormidale and Lord Gifford concurred.

Page: 199↓

The Court therefore answered in favour of the third parties to the case.

Counsel:

Counsel for First and Second Parties— Mitchell. Agents— Graham, Johnston, & Fleming, W.S.

Counsel for Third Parties— Graham Murray. Agents— Thomson, Dickson, & Shaw, W.S.

Counsel for Fourth Party— Guthrie. Agent— Alexander Fleming, S.S.C.
1878