Scottish Court of Session Decisions

By contract and mutual disposition, dated 22d July 1835, executed by David Wilson and Isabel Wood or Wilson, his wife, it was provided that the said David Wilson and Isabel Wood or Wilson “do hereby, with and under the burdens and reservations after mentioned, give, grant, assign, and dispone to and in favour of the survivor of us, and after the decease of the longest liver of us, to the nearest in kin of us, the said David Wilson and Isabel Wood, equally … the whole estate and effects, heritable and moveable, real and personal, of whatever kind or wherever situated, at present belonging to us, or either of us, or that shall pertain and belong to the party predeceasing at the time of their death … and declaring these presents to be equally valid and effectual to all intents and purposes as if each particular of our respective means and estate were herein expressly described: And we do hereby nominate and appoint the survivor of us, whom failing the nearest in kin of us, the said David Wilson and Isabel Wood, to be the sole executor or executors of the party predeceasing … And we do hereby reserve our liferent of the whole estate and effects hereby conveyed, with full power to us, with consent of each other, to alter and revoke these presents in whole or in part … And we consent to the registration hereof in the Books of Council and Session, or others competent, for preservation, that all necessary execution may pass on a decree to be interponed hereto in common form.”

This contract and mutual disposition was not altered during the joint lives of the spouses, and there were no children of the marriage. There was no marriage-contract between the spouses. David Wilson died on 4th September 1855. His wife survived him, and accepted of the office of executor, to which the survivor was nominated in the contract and mutual disposition. There was no real estate.

Mrs Wilson died on 27th March 1883. Mrs Agnes Wood or Hogg, as the only surviving sister and next-of-kin of Mrs Wilson, was decerned her executor-dative. Mrs Wilson had three brothers and four sisters, of whom only Mrs Hogg survived. Mr Wilson had no brothers and only one sister, Isabella Wilson or Dickson, who died in 1867, leaving four daughters, Grace, Helen, Catherine, and Isabella, of whom the last named predeceased Mrs Wilson unmarried.

A question arose regarding the construction of the mutual disposition, and this Special Case was adjusted, to which Mrs Hogg was the first party, and Mrs Grace Dickson or Bruce, Mrs Helen Dickson or Thomson, and Miss Catherine Dickson were the second parties.

The first party maintained that she was entitled to one-half of the whole estate as the only surviving sister and nearest in kin of Mrs Wilson. The second parties contended that the nearest in kin of both spouses were called as a class, that the estate should be divided among the nearest in kin of both spouses per capita, and that the division should accordingly be into four equal parts.

The question presented for the judgment of the Court was—“Whether the destination in the above-mentioned contract and mutual disposition ‘to the nearest in kin of us, the said David Wilson and Isabel Wood, equally,’ confers a right to one-half of the succession on the nearest in kin of the husband, and to the other half on the nearest in kin of the wife; or whether the nearest in kin of both spouses are to be treated as a single class, and the succession divided equally among the individuals of that class?”

It was argued for the first party that the words “nearest in kin” were to be taken in the proper sense as unaffected by the Statute 18 Vict. cap. 23— Young's Trustees v. Janes, December 10, 1880, 8 R. 242. In other cases the same words were found, with, however, an explanatory clause— Young's Trustees v. janes, supra; Murray v. Gregory's Trustees, January 21, 1887, 14 R. 368. No doubt in a certain class of cases the presumption was for division per capita— Macdougall v. Macdougall and Others, February 6, 1866, 4 Macph. 372. But that was always limited to the case of a destination to children or issue. In general, too, the case was simple, because the document to be construed was the will of one person. Here the presumption was the other way. It was a mutual will, equivalent to two wills. Besides, the language of the deed was important. The words are “to … equally,” not “between” or “among.” Moreover, there was here no relationship between the two sets of next-of-kin— Allen v. Flint, June 15, 1886, 13 R. 975.

It was argued for the second parties that the division should be per capita, The testators were dealing with an estate, of which the corpus was composed of the funds of both, and they had in view the next-of-kin, considered as forming one class. Had they intended otherwise, they would have inserted a special provision, as in the case of Young's Trustees v. Janes, supra cit.

At advising—