Scottish Court of Session Decisions

Mrs Janet Perston Falconer or Campbell, 257 Crown Street, Glasgow, died there intestate and without issue on 10th January 1892. Competing petitions for the office of executor-dative were presented in the Sheriff Courtat Glasgow by her husband William Campbell qua widower, and by her brother Alexander Bilsland Falconer, her brother, qua next-of-kin.

Upon 29th January 1892 the Sheriff-Substitute ( ) refused the petition by the husband, and decerned the brother executor as craved.

“ Note.—It has been decided by the Supreme Court in the case of Stewart v. Kerr, March 19, 1890, 17 R. 707, that the next-of-kin of a person deceased has a preferable right to the office of executordative to that of a husband.”

The husband appealed to the First Division of the Court of Session, and argued—No doubt the question had been decided by the Second Division in the case of Stewart v. Kerr, but the matter was of sufficient importance to merit reconsideration by Seven Judges or by the Whole Court. That decision had not given satisfaction to the legal profession. Where there were no children, as here, the husband had now—since the passing of the Married Women's Property (Scotland) Act 1881—a pecuniary interest equal to that of all the next-of-kin combined. That was an element to be considered— cf. Muir, November 3, 1876, 4 R. 74, and Webster v. Shiress, October 25, 1878. In the settled order of preference the widow would probably have been placed before the next-of-kin but for her sex.

Counsel for the respondent was not called upon.

At advising—