Scottish Court of Session Decisions

By section 2 of the Intestate Moveable Succession (Scotland) Act 1855 it is enacted—“Where the person predeceasing would have been the heir in heritage of an intestate leaving heritable as well as moveable estate had he survived such intestate, his child, being the heir in heritage of such intestate, shall be entitled to collate the heritage to the effect of claiming for himself alone, if there be no other issue of the predeceaser, or for himself and the other issue of the predeceaser, if there be such other issue, the share of the moveable estate of the intestate which might have been claimed by the predeceaser upon collation if he had survived the intestate, … and where in the case aforesaid the heir shall not collate, his brothers and sisters and their descendants in their place shall have right to a share of the moveable estate, equal in amount to the excess in value over the value of the heritage of such share of the whole estate, heritable and moveable, as their predeceasing parent, had he survived the intestate, would have taken on collation.”

On 26th December 1895 Andrew Liddell Innes died at Saughton Hall near Edinburgh, unmarried and intestate. He left heritable estate, consisting of house property in Edinburgh of the value as realised by sale of £2485. He also left moveable estate of the value, after deducting estate and residue-duty and funeral and other expenses, of £21,685, 9s. 10d.

The heir in heritage of the deceased Andrew Liddell Innes was Peter Innes, the eldest son of Robert Innes, who was a cousin-german of Andrew Liddell Innes. Had Robert Innes survived Andrew Liddell Innes he would have been his heir in heritage. At the date of the death of Andrew Liddell Innes two other descendants of Robert Innes were alive, viz.— (1) Mrs Isabella Janet Innes or Coghill, a daughter of Robert Innes by his second marriage, and thus a sister consanguinean of Peter Innes; and (2) Mrs Margaret Calder Innes or Stewart, the only child of the deceased James Innes, second son of Robert Innes by his first marriage.

The heirs in mobilibus of Andrew Liddell Innes were his two cousin-germans, Mrs Anne Innes or MacBeath and Mrs Mary Ann Gunn or Gordon. They were duly decerned executrices-dative qua next-of-kin of the deceased, and as such obtained confirmation of his moveable estate.

Peter Iunes resolved to exercise the right conferred on him by the section of the Act above narrated and collate the heritage of the deceased with the moveable estate. His claim to do so was admitted by the executrices and next-of-kin. He made up his title to the heritable estate and sold it at public auction for £2485. No part of the price thus realised was paid to the next-of-kin, but the whole sum was put to the credit of Peter Innes in account with them, and he further received from them part of the proceeds of the moveable estate. There remained due to him a considerable sum in order to make up, along with the proceeds of the heritage, the full amount of one-third of the deceased's whole estate.

In these circumstances questions arose as to who were entitled to share in the moveable estate which Peter Innes had taken on collation, and the amount of their respective interests therein.

For the settlement of these points a special case was presented to the Court by (1) Peter Innes, (2) Mrs Isabella Janet Innes or Coghill, and (3) Mrs Margaret Calder Iunes or Stewart.

The questions at law were-“(1) Whether the first party is bound on collation to communicate to either of the second or third third parties any share of the moveable estate of the intestate Andrew Liddell Innes taken by him on collation? (2) In the event of the preceding question being answered in the affirmative, whether the third party is entitled to participate in the share of the moveable estate of the intestate Andrew Liddell Innes which might have been claimed by the predeceaser Robert Innes upon collation if he had survived the intestate, or whether such share falls to be divided between the first and second parties to the exclusion of the third party? (3) Whether, in computing the share, if any, of the moveable estate of the intestate which falls to be divided by the first party between himself and the other issue of the predeceaser Robert Innes, any sum falls to be deducted as the value of the intestate heritage from the one-third of the intestate's whole estate, heritable and moveable, taken by the first party upon collation? (4) In the event of the preceding question being answered in the affirmative, whether the whole value of the intestate's heritage falls to be deducted from said one-third of the intestate's whole estate, or whether only one-third of the value of said heritage falls to be so deducted?”

Argued for the first party—(1) The second party was not entitled to a share of what he took on collation, on the principle that the full blood excludes the half-Bell's Prin, sec. 1861.

(2) The third party was not entitled to a share, because the expression “issue” in section 2 of the statute was limited to children of the predeceaser, and did not extend to children's descendants— Young's Trustees v. M'Nab, July 13, 1883, 10 R. 1165. Therefore he was entitled to the whole of the estate taken on collation. (3) In any event, he was not bound to divide between himself and the other issue of the predeceaser more than the difference between the value of the heritage and one-third of the whole estate. Taking the value of the heritage at £2485, and the value of

Page: 22↓

the moveable estate at £21,685, the value of the whole estate was £24,170, and the one-third thereof £8056, 13s. 4d. Therefore the sum which he was bound to divide in equal shares between himself and the other issue of his father, in the event of his being bound to make any division, was £5571, 13s. 4d., being the difference between £8056, 13s. 4d. and £2485. In collation there was no constructive conversion—the heir retained his character as heir and his heritage as heir. The character in which he took was not affected, although the law allowed him to claim so much of the move-able estate as would equalise the share which he received with that of each of the next-of-kin— Fisher's Trustees v. Fisher, December 5, 1850, 13 D. 245, opinion of Lord Moncreiff, p. 259.

Argued for the second party—(1) She was entitled to participate in the benefits of the statute as one of the “issue of the predeceaser.” (2) As the heritable estate of the deceased was collated, it was constructively converted, and the moveable estate falling to be divided among the issue of the predeceaser extended to £8056, 13s. 4d., being one-third of the whole estate, heritable and moveable, of Andrew Liddell Innes. Alternatively, by the law of collation, by which the heritable estate was thrown into a common stock with the moveable, only one-third of the heritable estate should be treated as retained by the first party (the other two-thirds thereof being treated as if conveyed to the intestate's next-of-kin). This was the moveable estate which he was bound to divide, £7228, 6s. 8d., being the full sum of one-third of the moveable estate of Andrew Liddell Innes, which amounted to £21,685 or thereby—Erskine's Institutes, iii. 9, 3.; Bell's Com. (7th ed.), i. 95; Bell's Prin., sec. 1910.

Argued for the third party—(1) She was entitled to participate in the benefits of the statute. Issue, on a sound construction of the second section, included descendants of the children of a predeceasing parent— Macdonald v. Hall, July 24, 1893, 20 R. (H.L.) 88; Turner's Trustees v. Turner, March 4, 1897, 24 R. 619. (2) As regarded the amount of the moveable estate, she adopted the contention of the second party.