Scottish Court of Session Decisions

Miss Jessie Kerr or Stewart, wife of Kenneth Stewart, 48 Breadalbane Street, Glasgow, died there intestate and without lawful issue on 20th December 1889. Her whole personal estate and effects, without deduction of debts or funeral expenses, did not exceed the value of £300.

The said Kenneth Stewart presented a petition in the Sheriff Court at Glasgow praying to be appointed executor-dative qua husband of the deceased. John Kerr, plumber, Springfield Terrace, Dunblane, brother of the deceased, presented a petition in the same Sheriff Court to be appointed executor-dative qua one of the next of kin.

The Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. c. 21) enacts by sec. 6 that “after the passing of this Act the husband of any woman who may die domiciled in Scotland shall take by operation of law the same share and interest in her moveable estate as is taken by a widow in her deceased husband's moveable estate, according to the law and practice of Scotland, and subject always to the same rules of law in relation to the nature and amount of such share and interest, and the exclusion, discharge, or satisfaction thereof, as the case may be.”

The Sheriff-Substitute ( Spens) dismissed the husband's petition and decerned the brother executor-dative.

“ Note.—In this case the husband of the deceased claims to be executor in preference to the next of kin. Such, at all events, is the position taken up, as I understand, by the agent for the husband. The argument addressed to me was, that as everything belonging to the wife previous to the passing of the Married Women's Property Acts of 1877 and 1881 fell under the jus mariti of the husband, he was entitled still to the end of his life to administer the whole estate left by his deceased wife, the statutes referred to not affecting his right as to this. I confess I do not follow this argument. The wife being intestate at the date of her death, an executor-dative must be appointed to her estate. The husband, under the Married Women's Property Act of 1881, sec. 6, has a beneficial interest in her estate, the same as she would have had in his estate had he predeceased her. My view has been, on the authority of the principle given effect to in Webster v. Shiress (25th October 1878, 6 R. 102), that a very substantial beneficial interest in the estate of a deceased person by one not the next of kin, entitled such person to be conjoined as executor along with the next of kin; and giving effect to this view, I would have been inclined to have conjoined the husband and next of kin in this executry. Sheriff Berry, however, takes a different view. He has held, in the case of Stewart (1886), that in a competition between the father of a deceased person and a widow, the father, as next of kin, must succeed to the office, to the exclusion of the widow. The husband in this case appears to me to be in pari casu to the wife in the case just referred to, and in these circumstances I must just give effect to Sheriff Berry's views.

The husband appealed to the Second Division of the Court of Session, and argued — The passing of the Married Women's Property Act 1881 had materially altered the position of a husband. He had now a substantial beneficial interest in his wife's moveable estate upon her death. If that altered position did not give him the right to exclude the next of kin he ought at least to be conjoined with them. It was always competent to the Court to make a joint appointment. In the case of Muir, 3rd November 1876, 4 R. 74, the Court remitted the case back to the Sheriff that the mother might be conjoined with the widow, and in the case of Webster v. Shiress, 25th October 1878, 6 R. 102, the representative of the father was conjoined with a brother of the deceased.

Argued for the respondent—The order of preference for the office of executor-dative was well established—Bell's Prin. sec. 1894. The next of kin were preferred to the exclusion of the widow, and the 1881 Act only put a widower in the same position as regards rights of succession as a widow. To reverse the judgment here would lead to ordinary creditors constantly petitioning to be conjoined with the next of Kin.

At advising—