Scottish Court of Session Decisions

Mrs Anne Tronson or Charters died in Edinburgh on 24th July 1883. At the time of her death two writings by her of a testamentary character were in the possession of her law-agent, Mr Scot Dickson, W. S. They were put up together in an envelope in his office.

The earlier in date of these writings was a trust-disposition and settlement, prepared by Mr Dickson in 1874, by which she conveyed to Miss Sibella Anderson and Mr Dickson, as trustees, her whole estate, heritable and moveable, for two purposes—“ First, For payment of all my debts and of the expenses of this trust, and of any legacies which I may leave by a separate writing, whether formal or informal; and Second, That my trustees shall on my death pay or convey the residue of my said trust estate to any person or persons I may name by any writing under my hand, and failing such writing, among my next-of-kin who would have been entitled to succeed to my moveable estate had I died intestate; and I appoint my said trustees and their foresaids to be my sole executors; and I revoke all former settlements made by me; and I reserve power to alter or revoke these presents in whole or in part.”

The later in date of the two writings was dated 18th February 1882. It was holograph of the testatrix and signed by her. It was as follows—

“To my executrix Miss Sibella Anderson, also David Scot Dickson, Esq., W.S.

I wish the following legacies paid after the sale of my house and property therein. [Here followed a legacy to Miss Anderson, and sundry other legacies. The writing then continued—] “Having appointed Mr David Scot Dickson my executor, I wish it to be understood that he is entitled to act as agent in the trust, and make the usual professional charges.

To Mr David Scot Dickson £50 (fifty pounds) for his kind attention to me at all times in regard to my business affiairs.

Should my servant Elizabeth M'Lauchlan be in my service at my death, the sum of £60 (sixty pounds). I should wish her to have sufficient furniture to settle down with in her room, whither she may go. I bequeath all my wearing-apparel to my brother Edward Thomas Tronson, for the use of his wife and children, to be sent to Swan Hill, Victoria, Australia. I wish effect to be given to no memorandum hitherto written by me. Of course the above cannot be settled till my debts, funeral expenses, including mourning for my servants, and every other expense attending my last illness is paid. Anne Charters.

I bequeath the sum of £150 (one hundred and fifty pounds) to Edith Cumberlige, niece of Colonel Bruce Boswell. Any residue of my property I bequeath to my next-of-kin.

“ Anne Charters.”

Mrs Charters was survived by two brothers, Captain James Tronson and Edward Thomas Tronson. A brother, General Tronson, had predeceased her leaving eight children. Two sisters had also predeceased her, one of whom, Mrs Greville, had left four children, and the other, Mrs Egerton, had left one child.

Captain Tronson and Edward Thomas Tronson, the two surviving brothers, claimed as being the only next-of-kin of the testatrix to be entitled as such, in accordance with the intention of the testatrix, to the whole residue of the estate after payment of debts and legacies. The children of the deceased brother and sisters claimed to be entitled also to share the residue, the children of each family taking one share in place of their parent, and the estate being thus divided into five shares in all.

This Special Case was therefore presented for the judgment of the Court, Captain Tronson and Edward Thomas Tronson being the first parties, and their nephews and nieces being the second parties. The third party was Mr Scot Dickson, the sole surviving trustee.

The question of law was—“Are the parties of the first part entitled to the whole residue of Mrs Charters' trust-estate; or are they only entitled to one-fifth thereof each, the remaining three—fifths being divisible among the parties to the second part, all according to the rules of intestate moveable succession?”

Argued for first parties—The only next-of-kin in the true legal sense of the words were the first parties, the second parties being only representatives of next-of-kin. No doubt they would succeed by the law as altered by the Intestate Succession Act of 1855 if there had been intestacy; but that Act (which adopts the common law definition of next-of-kin) did not make them next-of-kin— Young's Trs. v. Janes, December 10, 1880, 8 R. 242; Haldane's Trs. v. Murphy, December 15, 1881, 9 R. 269 (Lord President at p. 275). That being so, (l)the first parties being the only next-of-kin in point of law, must take under the writing of 1882, which could alone be looked at. It was a complete though informal will, providing for debts and legacies, and it conveyed residue. It operated an implied revocation of the formal writing of 1874, because it dealt with the whole estate and conveyed the residue to a certain class of persons narrower than would come in

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under that of 1874. The test of implied revocation suggested in the case of Sibbald, 9 Macph. 399, was thus met. If the deed of 1874 had any effect it could only be as a mere nomination of executors, because the gift of the whole estate by the later writing was complete. (2) If the two writings were taken together, and the second read as a codicil only, then a meaning must be given to the omission in the second of the words which followed “next-of-kin” in the first. The omission must be taken to be intentional. The maxim posteriora derogant prioribus was in point—Jarman on Wills, p. 175. If the second deed had increased the class of residuary legatees instead of diminishing it, the claim of those it added to the class must have been admitted. (3) The condition on which “next-of—kin who would have been entitled to succeed to my moveable estate had I died intestate” were to take was “failing” a subsequent writing—and there had been such, by which a smaller class was favoured.

Argued for second parties—The question was one of intention, and the two papers could be read together. The presumption was against rejecting the first executed if it could stand along with the second. It furnished an explanation of the sense in which the testatrix used the term “next-of-kin,” and it gave the residue to a clearly—defined class of persons. Equally clear words were required to take such a gift away, and the maxim posteriora derogant prioribus only applied if there was inconsistency—Jarman, p. 479. But here the first parties had only a highly technical interpretation of the term “next-of-kin” to rely on.

At advising—