Scottish Court of Session Decisions

At the passing of the Crofters Holdings (Scotland) Act 1886 Duncan M'Innes was the holder of a small croft situated at North Ballachulish, in the parish of Kilmallie, on the property of Cameron of Lochiel. He died upon 9th May 1892.

He left a general disposition and settlement dated 27th August 1891. This settlement contained a special conveyance of the testator's whole right, title, and interest in and to his croft in favour of John M'Kenzie, crofter and tailor at North Ballachulish, his cousin, the son of his mother's sister.

Upon 17th May 1892, being within twenty-one days of the testator's death, M'Kenzie intimated the testamentary bequest to the landlord in terms of the Crofters Holdings Act.

Upon 26th May 1892 Lochiel's factor wrote to M'Kenzie that Lochiel could not receive him as occupier of the croft, on the ground that he was not the heir of the deceased within the meaning of the Crofters Act, and so could not inherit the croft under the will in his favour.

M'Kenzie brought an action in the Sheriff Court at Fort-William against Lochiel, to have it declared that he was the crofter of and in this croft as from 9th May 1892 by virtue of M'Innes's general disposition and settlement, and of the provisions of section 16 of the Crofters Holdings Act.

The defender pleaded—“(1) No title to sue. (8) The pursuer not being of the same family as the said Duncan M'Innes—that is, not being a person who, failing nearer heirs, would succeed to the said Duncan M'Innes in case of intestacy, he is not entitled to the bequest in his favour. (9) In any event, the pursuer not being within the degrees of relationship specified in the last paragraph of section 16 of the Crofters Holdings (Scotland) Act 1886, and the defender having represented to the Court that the croft should be enlarged by adding it to the croft of the neighbouring crofter David Colquhoun, the present petition should be refused.”

Upon 23rd October 1893 the Sheriff-Substitute ( Baillie) pronounced this interlocutor—“Finds that Duncan M'Innes, a crofter, who died on 9th May 1892, bequeathed, inter alia, his right to his holding to the pursuer, and that the pursuer was related to the testator through his mother, who was a sister of the testator's mother: Finds that the pursuer intimated said bequest to the defender, the proprietor of the holding, on 17th May 1892, and that the defender's agent on 26th May 1892 objected to receive him as crofter in the holding: Finds that, in the circumstances stated, the pursuer is not a member of the same family as the testator within the meaning of section 16 of the Crofters Act (49 and 50 Vict. cap 29), and that the bequest is quoad the right to said holding null and void: Therefore sustains the first, third, and eighth pleas-in-law for the defender: Refuses the prayer of the petition.

“ Note.—The pursuer John Mackenzie here seeks to have it found that he is entitled to a holding at North Ballachulish, on the estate of the defender. This right he claims by virtue of a bequest of the right to the holding granted in his favour by Duncan M'Innes, who was the last crofter in possession of the holding. This bequest was intimated to the defender, who objected to receive the pursuer as a crofter, and after some considerable delay the pursuer has presented the present petition under the Crofters Act (49 and 50 Vict.), section 16, sub-section ( d). From the facts averred by the parties, it appears that the pursuer's mother was a sister of the testator's mother, and the question which must therefore be determined at the outset is whether such a relationship is one within which this bequest could competently be made. The Crofters Act provides by section 16 that ‘a crofter may by will or other testamentary writing bequeath his right to his holding to one person, being a member of the same family—that is to say, his wife or any person who, failing nearer heirs, could succeed to him in case of intestacy,’ &c. The right of bequest here given to a crofter for the first time is strictly limited by the statute to the wife or to a particular class of persons— i.e., any person of the same family as the testator who, failing nearer heirs, would succeed in a case of intestacy. The person so favoured must, as stated by Lord M'Laren in M'Lean v. M'Lean, 18 R. 885 (at page 888), be of the blood of the testator. That the pursuer cannot be said to be. He is not a person who, failing nearer heirs, would succeed in a case of intestacy, and consequently any bequest of a right to a holding of this nature must to that extent be null and void. It was, however, contended for the pursuer that the words of the proviso at the end of this section, ‘provided always, that in the case of any legatee or heir-at-law more distant than wife, son, grandson, brother, or son-in-law,’ extended the power of bequest to a wider class of persons than those provided for at the beginning of the section, and would embrace all relationship even by affinity. This construction would, however, be repugnant to the rest of the section, and I do not think it necessary to adopt it, as it is manifest that—with the single exception of the son-in-law, in whose case special reasons for favour exist—there

Page: 349↓

can be persons of the blood of the testator, and entitled to succeed on intestacy, who are yet more distant than those named— e.g., nephews and nieces. The sole effect of the proviso, therefore, is to give to the proprietor a further right of objection in their case which has been denied him in the case of those of nearer degree. Such an interpretation is quite in consonance with the reading of the whole section, and in no way antagonistic to the plainly expressed requisite that the legatee must be the wife of the testator, or a person who, failing nearer heirs, would succeed in intestacy. Since, therefore, the bequest is null and void, any consideration as to whether the holding in question should or should not be added to that of an adjoining crofter is rendered unnecessary.”

The pursuer appealed, and argued— On the competency of the appeal—The statute provided that the Sheriff's decision was to be final, but that only applied to the case of a reasonable objection to one who had been found entitled under the provisions of the Act to succeed as legatee. Here the question was of the construction of the Act itself, and not merely whether the Sheriff had considered the defender's objection. The words “shall be final” did not in themselves exclude the interlocutor of a sheriff-substitute or magistrate from review— Wylie, &c. v. Kyd, &c., May 21, 1884, 11 R. 820; Edinburgh and Glasgow Railway Company v. Earl of Hopetoun, July 1, 1840, 2 D. 1255. On the merits—It was admitted that under the first part of the 16th section of the Crofters Act the pursuer was not entitled to take under this will, but the second part of the section enlarged the scope of the Act, and contemplated that other and more distant relatives than were described in the first part of the section might be nominated by a testator. A person might succeed to a croft although he was not the nearest heir ab intestato of the testator at the time of his death— M'Lean v. M'Lean June 10, 1891, 18 R. 885.

Counsel for the respondent were not called on.

At advising—