Scottish Court of Session Decisions

Lord President—This petition is presented under the authority of the Presumption of Life Limitation (Scotland) Act 1881, section 4, which provides that—“In the case of any person who has been absent from Scotland, or who has disappeared for a period of fourteen years or upwards, or who has not been heard of for fourteen years, and who at the time of his leaving or disappearance was possessed of or entitled to moveable estate in Scotland, or who has since become entitled to moveable estate there, it shall be competent to any person entitled to succeed to the said absent person in such moveable estate to present a petition to the Court setting forth the said facts; and after proof of the said facts, and of the petitioner's being entitled as aforesaid, and after such procedure and inquiry by advertisement or otherwise as the Court may direct, the Court may grant authority to the petitioner to make up a title to, receive and discharge, possess and enjoy, sell or dispose of the said moveable estate in the same manner as if the said absent person were dead.”

The person who disappeared in this case was Mr Robert Craig, brother of a Mr William Craig, who died in Glasgow on 27th September 1874, and the petitioners are brothers and sisters, and the children of a deceased brother of the said William Craig. Robert Craig left this country for New York at the end of the year 1844 or the beginning of 1845, as the petition states, and it is also stated that shortly after his arrival there he wrote a letter, which however has disappeared and cannot now ‘be recovered. The only other statement in the petition on this matter is that “upwards of thirty years ago he was seen in St Louis, but since then he has not been heard of. At the time he sailed for America he would be about thirty-seven years of age.” A proof was allowed, and these statements have been confirmed on oath by the petitioners and their agents, and there is no reasonable doubt that they are perfectly well founded. The state of the facts therefore is, that Robert Craig was last heard of thirty years ago in America. Now, if he had been possessed of moveable estate when he left this country there is no doubt the petitioners would have been entitled on these averments to succeed to it. That, however, was not the case. What is alleged is that he has since become entitled to moveable estate on the death of William Craig on 27th September 1874. It might be a difficult and doubtful question whether, if there were no direct light to guide us through this statute, we could fairly assume that Robert Craig having been last heard of thirty years ago was still alive in 1874, and so in a condition to succeed to William Craig as one of his next-of-kin. But fortunately that matter has not been left in doubt, for by section 8 of the statute it is enacted that—“For the purposes of this Act, in all cases where a person has left Scotland, or has disappeared, and where no presumption arises from the facts that he died at any definite date, he shall be presumed to have died on the day which will complete a period of seven years from the time of his last being heard of, at or after such leaving or disappearance.” Now, applying that section to the present case, we are bound to presume, in the absence of any other “presumption arising from the facts,” that Robert Craig died seven years after what is called “thirty years ago”—that is to say, twenty-three years ago; and if that is so, it is plain that he did not succeed, and could not have succeeded, as one of the next-of-kin of William Craig in 1874. If, indeed, there had been any special facts in the case to raise a presumption that he died at any definite date subsequent to 1874, we should be bound by the 8th section of the statute to give effect to such presumption. But there are no other facts stated other than those which I have mentioned. I am therefore of opinion that the petitioners have not made out their case. They have not, and cannot, in the face of the 8th section, establish that Robert Craig has become possessed of moveable estate in Scotland since his disappearance.

Lord Mure concurred.

Lord Shand—I am clearly of the same opinion. The Court is asked, for the purpose of finding that a succession vested in Robert Craig, to hold that he was alive in 1874, for 1874 is the date at which the succession opened. But at the same time we are asked, in order to let in the petitioner's right of succession, to hold, under the terms of the statute, that Craig died so long ago as 1858. The obvious inconsistency of holding by the same judgment that a man died in 1858 and yet succeeded to moveable estate in 1874 is very startling; and it would be most unfortunate should it become necessary for the Court in effect to affirm in the same judgment facts so obviously contradictory of each other. But it appears to me that we are not shut up to that result. The key to the whole provisions of this statute must, I think, be found in section 8, which enacts— [His Lordship read the section as above]. Proceeding on that section as the leading provision of the Act, and indeed as containing the

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