Scottish Court of Session Decisions

This was an action of multiplepoinding for the distribution of the moveable estate of the deceased Miss Jane Ogilvy, consisting of a sum of £303, 2s. 5d., in which the nominal raisers were the Union Bank of Scotland; and the real raisers, defenders and claimants, were nephews and nieces of Miss Jane Ogilvy, and her next-of-kin.

The circumstances under which the action was brought were these—Miss Ogilvy died on 17th February 1883, leaving a will by which she made over her whole estate to her brother William Ogilvy, and in the event of his predecease, then to his lawful children. In the condescendence annexed to the summons it was stated that William Ogilvy went to South Africa in 1861, and had not, so far as the defenders knew, ever returned. The last letter from him was received on 15th April 1872, and stated that he was ill and in hospital at “Diamonds-fields, Colesberg,” South Africa. He was at that date unmarried. The real raisers averred that careful inquiry was made by the representatives of a person who held a policy of insurance on William Ogilvy's life, but that they did not succeed in getting any information about him, and that the insurance company were satisfied that there was a reasonable presumption that William Ogilvy had died, and made payment accordingly.

There was also this averment—“Under the provisions of The Presumption of Life Limitation (Scotland) Act 1881, the defenders being the ‘persons entitled to succeed’ to the said William Ogilvy, would be entitled to ask the Court to grant authority to them to ‘make up a title to receive and discharge, possess and enjoy, sell or dispose of’ the moveable estate to which the said William Ogilvy became entitled under the settlement of the deceased Miss Jane Ogilvy, and which vested in him at her death on 17th February 1883. Under the 8th section of that statute, however, the said William Ogilvy must be presumed to have died on 15th April 1879, being the day which would complete a period of seven years from the time of his last being heard of. As the succession to Miss Jane Ogilvy did not open until 17th February 1883, the real raisers are not in a position to make application under the said Act for authority to make up a title to receive and discharge the said sum of £303, 2s. 5d., forming the fund in medio in the present action, and in these circumstances the present action has become necessary.”