Scottish Court of Session Decisions

The late Sir William Stirling Maxwell, Baronet, of Keir and Pollok, died on 15th January 1878, leaving besides the entailed estates of Keir and Pollok, a large amount of moveable property.

By his holograph will dated 2d January 1875 he appointed certain persons his executors, and inter alia provided—“I also bequeath to Alexander Young, my factor, four thousand pounds, in testimony of my regard and of my sense of his long and faithful service and friendship. To Thomas Saddler, my butler, three hundred pounds. To George Crowson, my butler at 10 Upper Grosvenor Street, five hundred pounds. To Thomas Mott, my coachman, five hundred pounds. To Mrs Cairns, my housekeeper, three hundred pounds. To each of my other servants who shall be in my service at the time of my death, and who shall have been with me for four years, one year's wages.”

On the margin opposite each of the specific legacies there was marked in pencil the amount of each legacy in figures, and opposite the final bequest—“To each of my other servants,” &c.—there was written, also in pencil, the words “say £1000.” These marginal additions were holograph of Sir William Stirling Maxwell.

Under the authority of the will the executors paid away sums amounting in all to £936. The persons to whom these payments (amounting to a year's wages to each) were made included certain domestic servants and also two gardeners, three gamekeepers, a carpenter, a forester, a farm grieve, and three land overseers. Under a decree

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of the Court of Session (21st May 1884, vol. 21, p. 549) they also paid Thomas Brown, blacksmith, the sum of £78, 15s. 4d. as one year's wages to him. A number of persons—all of them employed on outdoor occupations on the estates, some as ploughmen, foresters, gamekeepers, carpenters, or the like, and others as ordinary day labourers—who considered that they were entitled to payment of one year's wages as having been servants of Sir William Stirling Maxwell for the four years immediately preceding his death, brought actions in the Court of Session against the executors for the sums alleged to be thus due to them.

In these circumstances the executors on 13th December 1884 brought an action in which they called as defenders all the foreging persons, as well as all others having similar occupations and in a position to make a similar claim, or the heirs or other representatives of such persons. The conclusions of the summons were for declarator “that the defenders are not, nor is any one of them entitled, to take benefit under a bequest or provision made by the said deceased Sir William Stirling Maxwell in his said will in the following terms—To each” &c., “and that the pursuers, as executors aforesaid, are not bound nor entitled to make payment to the defenders or any of them of any sum under or in virtue of the said bequest or provision,” and for decree ordaining the defenders “to desist and cease from troubling the pursuers as executors aforesaid in all time coming, and from making any claim or demand under or in virtue of the said bequest or provision in the said will.”

The pursuers, besides contending that none of the defenders were, from the nature of their employment, entitled to a legacy, as not being “servants” within the meaning of the bequest, maintained that certain of the defenders who had been (as the pursuers averred) employed on the estate of Pollokshields, could not be regarded as servants by the testator on the following special ground:—“The said estate of Pollokshields was held by trustees nominated by and acting under a trust-disposition and deed of entail executed by the late Sir John Maxwell of Pollok, Bart., dated 23d July 1863, in trust for the uses and purposes therein set forth. The said purposes were to pay off subsisting debt on the estate of Pollok, and ultimately to entail the said estate of Pollok-shields, or the unsold residue thereof remaining after the said debt was paid off, on the series of heirs mentioned in said trust-disposition and deed of entail. The said defenders were not at the date of Sir William's death in his service, or at all events they had not been so for four years prior to said date.”

A proof was allowed. The import of the evidence as regarded the general position of the several defenders sufficiently appears from the Lord Ordinary's note. The pursuer's averments regarding the estate of Pollokshields were substantially borne out by the facts, with these qualifications, that none of the defenders affected by this question were exclusively employed on that estate, that some of them were largely so employed during the four years in question, while others were so employed only during one or two isolated weeks in each year, and that it was not proved that any of the defenders, when transferred from the entailed estate of Pollok to the trust-estate of Pollokshields (which prior to the entail and the trust were one estate), knew that the character of their service was in any way altered, though their wages were entered in separate books, and the management of the two estates generally was kept distinct. The unsold portion of Pollokshields after the debts had been paid was directed to be entailed on the same series of heirs as Pollok, and this was being done at the date of the proof. It also appeared that there had been allocated to Sir William Stirling Maxwell annually by the Renfrewshire statute-labour road trustees a sum of money to be applied by him to the maintenance of the statute-labour roads in the neighbourhood of his property, and that some of the defenders were employed on these roads during a part of the four years, receiving their wages out of the money thus allocated.

On 2d July 1885 Lord Lee issued the following interlocutor:—“Finds that of the compearing defenders the following are or represent persons who at the date of the late Sir William Stirling Maxwell's death had been four years in his service as his servants within the meaning of the will mentioned on record, viz., Allan Cameron, mason, William Anderson, Robert Fyfe, John Stewart, John Richardson, John Taylor, David Bryce, Duncan Fisher's representatives, Duncan M'Intyre, cattleman, William Wight, representatives of Robert Kinnibrugh, deceased; the representatives of James Henderson, deceased, John Maxwell, the representatives of Smith Ferguson, deceased, Andrew Wren, John Moffat, the representatives of Enoch Torrance, deceased, the trustees of Gavin Ralston, deceased, Thomas Brown, Pollokshields, John Monaghan, James Muir, John Cowan, Dennis Kerry, Robert Aitken: Therefore assoilzies the said defenders from the conclusions of the action, and decerns: Finds them entitled to expenses, and remits the account when lodged to the Auditor to tax and to report: And as regards the other defenders, Finds, declares, and decerns in terms of the conclusions of the summons, and finds no expenses due.

“ Opinion.—The principles upon which, in my opinion, the claims of the various defenders ought to be disposed of (and have been disposed of in the interlocutor now pronounced) may be briefly stated.

The bequest is—[ reads]—and it occurs in the settlement of a man who from his position and occupation was obliged to maintain a large establishment of servants not only for domestic purposes, but for purposes of forestry, gardening, farming, and the maintenance of a well-known stock of Clydesdale horses and shorthorn cattle. I hold it settled by the case of Brown that the bequest is not confined to servants upon the domestic establishment.

The testator had several places in Scotland, and I think it proved that he had servants at each of them. A part of one of these estates (Pollok) appears to have been settled upon trustees for the purpose of payment of debt, and ultimately of being entailed upon a series of heirs, of whom Sir William himself was first. But the testator's interest in the rents and destination of this portion of Pollok, and the mode in which the Pollok servants were employed upon it, appear to me to make it impossible to deny to a servant of Sir William Stirling Maxwell,

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as proprietor of Pollok, the benefit of the legacy, merely on account of his being for a greater or less part of the four years employed upon Pollokshields and paid out of the Pollokshields rents.

On the other hand, I cannot think that every person who was employed in the testator's woods and upon the private roads at Keir and Pollok, or even in the gardens, is to be regarded as a servant. The words of the bequest, ‘my other servants,’ appear to me to suggest a class somewhat different from mere labourers employed by the grieve, or gardener, or forester, or joiner, at wages payable by the hour or day. I see no reason to exclude ploughmen on the home-farm, or a byreman with a house (like Muir), or servants (like M'Intyre, and Bryce, and Fisher, and Taylor) entrusted with important service in connection with the Clydesdales and shorthorns, and I have allowed as a general rule those who had houses on the place, like Kinnibrugh, and Wren, and John Cowan, or who carried letters, or did work about the house (like Wright, and Kerry, and Torrance, and Gavin Ralston, and Smith Ferguson). I have included Henderson, the Cawder gamekeeper (I think it proved that he was a gamekeeper), and Maxwell, the Pollok forester, and the men in charge of the sand-pit or the roads, and all those who were selected to attend the funeral as Pollok servants. The only class I have excluded, indeed, are those who in my opinion are proved to have been mere workers as labourers. Grant I have excluded, because he was for a part of the four years a mere labourer in the garden, and for the rest of it an apprentice to the head gardener. Cameron is included as the servant in charge of the mason-work, but Cairns and Downie are excluded as mere labourers under him. The evidence of Stewart, and Brown, and Cameron seems to show the precarious nature of the engagement upon which such labourers were employed.

With regard to the pencil jotting, my opinion is that it forms no part of the will, and can have no effect in restricting the bequest. It does not show the purpose with which Sir William made it.

I think it is to be regretted that all the actions which have been raised were not conjoined, so that the proof led might have enabled me to dispose of them at once. But I have endeavoured to dispose of the various claims which have been brought forward as far as possible. The cases of those who have not appeared may be disposed of as undefended, and in the roll of such causes.”

Certain of the unsuccessful defenders reclaimed. The remaining unsuccessful defenders (who were represented by separate counsel and agent) did not reclaim.

Argued for the reclaimers—All the persons who appeared as reclaimers were servants on Sir William's estate at the time of his death, and had been so for four years previously; they therefore were entitled to a share of the bequest. They were not hired for an occasional job. It was not unreasonable that any person who had done work on Sir William's estate for four years should be regarded as a servant of his for that time, and therefore should be entitled to share in the benefits under his will. The servants employed on the Pollokshields estate were shifted to that work without any intimation to them that they were working for anyone else than Sir William, and the same thing was true of those who worked on the statute-labour roads. Their pay always came through the same hands, although the money for their labour might have been derived from Sir John Maxwell's trustees or from the statute-labour road trustees. Therefore they should be considered as servants— M'Intyre v. Fairrie's Trustees, November 12, 1863, 2 Macph. 94.

Argued for the respondents—None of the reclaimers here were entitled to a share of the bequest. The fair test was to see if those persons came under the definition laid down by the Lord Justice-Clerk in the previous case of Brown v. Cartwright and Others, 21st May 1884, 21 S.L.R. 549—that is, whether they were “belonging to the domestic establishment” and none of the reclaimers came within that definition, as they were all employed in out-door labour about the grounds. From the context of the will it might be seen that Sir William did not intend to include all the labourers on the estate, as the servants to whom specific legacies were left were all engaged in personal attendance on himself. As to the claimants who were workers on Pollokshields estates, these were not Sir William's servants in any sense. They were the servants of the trustees, and were paid by the trustees. The same was true of those who were paid with money obtained from the statute-labour road trustees for work done on the roads.

A further argument was maintained on the competency of the pursuers opening up, as they proposed to do under the reclaiming-note, the cases of the defenders other than the reclaimers. The question turned on the construction of the Court of Session Act 1868, sec. 52, which provides—“Every reclaiming-note, whether presented before or after the whole cause has been decided in the Outer House, shall have the effect of submitting to the review of the Inner House the whole of the prior interlocutors of the Lord Ordinary of whatever date, not only at the instance of the party reclaiming, but also at the instance of all or any of the other parties who have appeared in the cause, to the effect of enabling the Court to do complete justice, without hindrance from the terms of any interlocutor which may have been pronounced by the Lord Ordinary, and without the necessity of any counter reclaiming-note.”