Scottish Court of Session Decisions

A Special Case for the opinion and judgment of the Court was presented by David Todd, judicial factor on the trust estate of the deceased Thomas Murray, farmer, Braidwood, Penicuik, first party; Mrs Helen Murray or Melrose, a sister of the testator, second party; David Murray, Glenfalloch, Pukeran, New Zealand, and others, being four nephews and a niece of the testator, and the husband of the niece as her administrator-in-law, third parties; Agnes Robb and others, being ( a) two nephews and four nieces of the wife of the testator, ( b) the husband of one of the said nieces, and ( c) the representatives of two other nephews of the wife, who had survived the testator but had since died, fourth parties; Thomas Brown and another, being a grandnephew and a grandniece of the wife of the testator, fifth parties; Mrs Minnie Brown or Sharp, another grandniece of the wife of the testator, and her husband as her administrator-in-law, sixth parties.

ThomasMurray, farmer, Braidwood, Penicuik, the testator, died on 16th January 1909, predeceased by his wife Mrs Joanna Forsyth or Murray, who died on 26th May 1906 leaving no property. Theyleft a mutual disposition and settlement dated 10th December 1862, and codicil thereto dated 6th February 1878, which were both recorded in the Books of Council and Session 9th February 1909. There was no nomination of executors in the said mutual disposition and settlement and codicil, and David Todd, the party of the first part, was appointed judicial factor on the trust estate, conform to interim act and decree in his favour

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dated 17th February and extracted 11th March 1909.

The mutual disposition and settlement provided—“We, Thomas Murray, farmer, Eastside, parish of Penicuik, and Mrs Joanna Forsyth or Murray, spouses, for the love, favour, and affection which we have and bear to each other, and for other good causes and considerations, have mutually agreed to execute these presents in manner under written—Therefore I, the said Thomas Murray, do hereby give, grant, assign, dispone, and convey from me, my heirs and successors, to and in favour of the said Mrs Joanna Forsyth or Murray, my spouse, in case she survive me, in liferent, for her liferent use only, and to and in favour of the children to be born of the marriage between us, equally among them, share and share alike, in fee, but subject to the power of division among them hereinafter written, and failing our children, then to the extent of one-half to and in favour of my own nearest of kin according to law, and to the extent of the other half to and in favour of the nearest in kin of the said Joanna Forsyth or Murray according to law, heritably and irredeemably, All and whole my whole means and estate and effects, heritable and moveable, real and personal, wherever situated or addebted, which shall belong or be addebted to me at the time of my death.”

By the codicil it was provided with regard to Robert Murray, a brother of the testator—“Therefore we jointly and severally, and with mutual consent and assent, do hereby revoke and recall the general dispositions and conveyances of our said respective estates, heritable and moveable, and destinations thereof, as contained in the foregoing deed, in so far as the same are conceived in favour of or would give any right or claim of succession to the said Robert Murray or his issue, or other heirs or successors whomsoever; and we hereby expressly exclude him and them from all share of or participation in our said means and estate, heritable and moveable, and direct and declare that the nearest of kin of me the said Thomas Murray, referred to in the said deed, shall be held and construed as meaning my nearest of kin exclusive of the said Robert Murray and his foresaids.”

Another brother of the testator, viz., James Murray, had not been heard of for fifty years, and a petition to presume his death was pending.

The testator's whole estate after payment of debts, Government duties, and expenses was estimated to amount to just over £2000.

The second party maintained that she and her brother Robert G. Murray were the sole surviving “nearest of kin according to law” of the deceased Thomas Murray, and that as her said brother had been excluded by the codicil of 1878 from any participation in deceased's estate, she was entitled to one-half of the whole estate, or alternatively, if her brother James Murray should be found to have survived Mr Murray, then to one-quarter thereof.

The fourth parties maintained that they were or represented the sole nearest in kin of the said Mrs Murray according to law who survived Mr Murray, and that as such they were entitled among them to one-half of the whole estate.

The third parties maintained that on a sound construction of the said mutual disposition, settlement, and relative codicil, the words “nearest of kin according to law” included the whole parties who would have been entitled to succeed to the moveable estate of the deceased Thomas Murray had he died intestate, and that they were entitled to receive the share of the deceased's estate which would have fallen to their father as one of the nearest of kin had he survived. They therefore maintained that they were entitled to one-quarter of the whole estate, or alternatively, if the said James Murray survived Mr Murray, or having predeceased him had left issue, to one-sixth thereof.

The fifth and sixth parties maintained that on a sound construction of the said mutual disposition, settlement, and relative codicil, the words “nearest in kin” of Mrs Murray “according to law” meant her heirs in mobilibus, and that they, as among those, were entitled to receive the shares of the estate which would have fallen to their respective fathers had they survived Mr Murray.

The questions of law stated for the opinion and judgment of the Court were — “(1) Upon a sound construction of the said mutual disposition and settlement and relative codicil, do the expressions ‘nearest of kin according to law’ and ‘nearest in kin … according to law’ confer a right of succession only upon those who as at the death of Mr Murray were the surviving next-of-kin of Mr and Mrs Murray respectively? Or (2) Upon such construction, do the said expressions confer a right to participate in the succession by representation upon the issue of those next-of-kin of Mr and Mrs Murray respectively who predeceased Mr Murray.”

Argued for the first, third, fifth, and sixth parties — They admitted that had the words “nearest of kin” or “nearest in kin” stood alone they could not have been interpreted as meaning heirs in mobilibus— Young's Trustees v. Janes, December 10, 1880, 8 R. 242, 18 S.L.R. 135; Gregory's Trustees v. Alison, April 8, 1889, 16 R. (H.L.) 10, 26 S.L.R. 787; M'Laren on Wills, p. 765, section 1394 — but they did not stand alone, but were followed by the interpretation “according to law”; that was a short way of expressing “according to the law of moveable succession in Scotland,” which was the interpreting expression in Rutherford's Trustees v. Dickie, 1907 S.C. 1280, 44 S.L.R. 960, and also was similar to the interpreting expression “who would have been entitled to succeed to my moveable estate had I died intestate” in Tronsons v. Tronsons, November 21, 1884, 12 R. 155,

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22 S.L.R. 125; and consequently nearest of kin so qualified fell to be interpreted as heirs in mobilibus. The contention on the other side made the words “according to law” superfluous and meaningless.

Argued for the second and fourth parties—There was no difference between “nearest of kin,” and “nearest of kin according to law.” It was not necessary in a testamentary deed to show that no words were superfluous, but it might be that they were added because of the distinction, referred to by Lord President Inglis in Murray and Others v. Gregory's Trustees, January 12, 1887, 14 R. 368, at 374, 24 S.L.R. 266, between nearest in the line of legal succession and nearest in blood.