Scottish Court of Session Decisions

Thomas Baird Maxwell and others, the testamentary trustees of the late Laurence Steedman, the testator, acting under a trust-disposition and settlement and codicils, first parties; Thomas Steedman, as an individual, and as executor-dative of his sister Elizabeth Steedman, who had survived the testator but had since died, and Helen Elspit Steedman, being the testator's surviving brother and sister, second parties; William Steedman and others, being with one exception all the surviving children of a brother and of a sister of the testator who predeceased him, third parties; Mary Steedman Aytoun Young and others, the children of Mrs Isabella Hislop or Young, a niece of the testator, who predeceased him, fourth parties; and James Steedman Hislop, being the surviving nephew of the testator not included in the parties of the third part owing to his being affected by a codicil, fifth party, brought a Special Case for the determination of their rights under the testamentary writings of the testator.

The trust-disposition and settlement dated 7th March 1904 conveyed the whole estate and effects to the first parties as trustees, and after providing for payment of debts and of certain legacies, inter alia, a legacy to the fifth party, and annuities, and giving sundry directions, made the following provision “In the eighth place, In regard to the residue and remainder of my estate and effects, my trustees shall hold, pay, and convey the same to such person or persons, or towards such objects and purposes, as I may by any codicil hereto or separate writing under my hand direct, and failing any such directions then my trustees shall pay and convey the said residue and remainder of my estate and effects to my nearest heirs and next-of-kin whomsoever in accordance with law.”

By holograph codicil dated 1st July the testator provided:—

“ First July, Nineteen hundred and twelve.

I, Laurence Christie Steedman, residing at South Broomage Avenue, Larbert, do hereby cancel and annul the legacy and provision of One thousand pounds made in my will or disposition and settlement before written in favour of James Hislop Steedman, and declare that he shall have no interest in my estate whatever at my death, In witness thereof this codicil written by my own hand is subscribed by me at South Broomage Avenue, Larbert, on the ‘1st day of July’ [‘First day of July’] Nineteen hundred and twelve. Laurence C. Steedman.

W. P. Pryde, witness, Bank Clerk, Larbert.

J. M. Pryde, witness, Student, residing at Clydesdale Bank, Larbert.”

The Case stated—“1. Laurence Steedman otherwise Laurence Christie Steedman) died on 17th February 1913. He was unmarried. He was survived by his brother Thomas Steedman and his sisters Elizabeth Steedman and Helen Elspit Steedman. The said Elizabeth Steedman has since died, but her interest is represented by the said Thomas Steedman as her executor-dative. These parties form the parties of the second part in the present case. The testator the said Laurence Steedman was predeceased by his brother William R Steedman, whose only child William Steedman is one of the parties of the third part. The testator was also predeceased by his sister Mary Ann Steedman or Hislop, all of whose surviving children, with the exception of James Steedman Hislop, are, along with the said William Steedman, the parties of the third part. The parties of the fourth part are the children of Isabella Hislop or Young, the only one of the children of the said Mary Ann Steedman or Hislop who predeceased the testator. The said James Steedman Hislop is the party of the fifth part. All the said parties are of full age excepting the said Alexander Aytoun Young, the youngest child of the said Isabella Hislop or Young, who is a minor, and his father the said Reverend Alexander Aytoun Young concurs in this case as his curator and administrator-in-law.

2.… The estate under the charge of the said trustees consists of moveables of the value of about £7000 and of certain heritage.”

5. … The first parties are only concerned to have the judgment of the Court as to who is entitled to receive the funds in their hands. There are funds in the hands of the first parties now available for distribution. …”

The second parties contended “that the said destination to the testator's nearest heirs and next-of-kin whomsoever in accordance with law carries the said residue to them as being or representing brothers and sisters of the testator alive at the time of his death, and excludes the issue of predeceasing brothers and sisters of the testator from any share in the said residue.” The third parties “that on a sound construction of the trust-disposition and settlement and codicils they are entitled to the residue.… alternatively, that they are entitled to share in the distribution of the said residue in the same manner and to the same extent as they would have been entitled to share if the testator had died intestate.” The fourth parties “that they are entitled to share in the said distribution to the effect of taking equally among them the share which would have fallen by the law of intestate succession to their mother if she had survived the testator.”

The fifth party—“That the said codicil is not effectual to revoke, and has not revoked, the legacy in his favour contained in the seventh purpose of the said trust-disposition and settlement, and on the second question that the said destination carries a share of the residue to him as one of the testator's nearest heirs and next-of-kin: … alternatively that he is entitled to share in the distribution of the residue in the same manner and to the same extent as he would have been entitled to share if the testator had died intestate.” [The fifth party intimated at the hearing that he was unable to argue in support of his contention.]

Page: 656↓

The questions of law were, inter alia—“(2) On a sound construction of the said trust-disposition and settlement are the second parties entitled to share in the residue of the moveable estate? (3) If the second question is answered in the affirmative—( a) does the expression ‘my nearest heirs and next-of-kin whomsoever in accordance with law’ include only the second parties, or ( b) does the expression include also (i) the third and fifth parties, or (ii) the third, fourth, and fifth parties? (4) If the second question is answered in the negative—( a) are the third and fifth parties alone entitled to share in the moveable residue, or ( b) do the fourth parties take their mother's share by representation?”

Argued for the second parties—The testator used the words “next-of-kin” in the technical sense. The term was opposed to heirs in mobilibus who were called to succeed as intestate heirs to moveable estate by the Intestate Moveable Succession (Scotland) Act 1855 (18 and 19 Vict. cap. 23), section 1, which introduced representation into the law of moveable succession. The expression next-of-kin must be so interpreted in a will—M'Laren's Wills and Succession, vol. ii, p. 775; Young's Trustees v. Janes, 1880, 8 R. 242, 18 S.L.R. 135; Murray's Factor v. Melrose, 1910, S.C. 924, 47 S.L.R. 778 cf.; Nimmo v. Murray's Trustees, 1864, 2 Macph. 1144. Further, it was the intention of the testator that the words “heirs” and “next-of-kin” should be read distributively; “heirs” to indicate the successors to his heritage, and “next-of-kin” the successors to his moveables. Further, it was necessary to exclude the fifth party from the succession by the codicil of 1st July 1912, for though he was amongst the heirs in mobilibus at the date of the will he might have been one of the next-of-kin at the testator's death.

Argued for the third parties—There was no decision upon words identical with those in the present case, so that it was open to the Court to construe the words “next-of-kin” according to the intention of the testator as manifested in his testamentary writings. His intention was that his estate should go to his heirs in intestacy as fixed by law unless he directed otherwise; he was a rustic and it was highly improbable that he used “next-of-kin” in its strictly legal sense. “Heirs” and “next-of-kin” were used collectively to designate a class. Even where terms with a technical legal meaning were used, the plain intention of the testator would prevail if it indicated that the testator did not use the words in their technical sense— Rutherford's Trustees v. Dickie's Trustees, 1907 S.C. 1280, 44 S.L.R. 960; Gregory's Trustees v. Alison, 1889, 16 R. (H.L) 10, 26 S.L.R. 787; Trousons v. Trousons, 1884, 12 R. 155, 22 S.L.R. 125.

Argued for the fourth parties—It was unnecessary to exclude the fifth party from the succession if as the second parties contended “next-of-kin” was used in the technical sense, for the fifth party was not amongst the next-of-kin in that sense but amongst the heirs in mobilibus. Quoad ultra those parties adopted the argument of the third parties.