Scottish Court of Session Decisions

The Intestate Husband's Estate Act 1911 (1 and 2 Geo. V, cap. 10) enacts—Section 1—“The heritable and moveable estate of every man who shall die intestate, domiciled in Scotland, after the passing of this Act, leaving a widow but no lawful issue, shall, in all cases where the net value of such heritable and moveable estate taken together shall not exceed five hundred pounds, belong to his widow absolutely and exclusively.” Section 2—“Where the net value of the heritable and moveable estate in the preceding section mentioned shall exceed the sum of five hundred pounds, the widow of such intestate shall be entitled to five hundred pounds part thereof. …”

A Special Case was presented by Hugh Taylor and another, executors of the late William Taylor, Greenlaw, Kilbirnie, first parties; the said Hugh Taylor and others, the next-of-kin and heirs in mobilibus of the deceased William Taylor, second parties; and Mrs Elizabeth Galt or Taylor, Greenlaw, Kilbirnie, widow of the deceased William Taylor, third party.

The Case set forth—“1. The late William Taylor, mercantile clerk, who resided at Greenlaw, Kilbirnie, died on 10th January 1917, leaving a holograph will dated 7th June 1910, and registered in the Books of Council and Session 9th November 1917. 2. The will is in the following terms, viz.—‘Greenlaw, Kilbirnie, June 7th, 1910.—I desire to leave to my wife Elizabeth Galt Taylor, for her

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natural life, the property known as Greenlaw, Kilbirnie, and all interest accruing from investments, and my life policy, such interests for her maintenance and my daughter Elizabeth Taylor. To my daughter Elizabeth Taylor, after her mother's death, the property known as Greenlaw and the residue of my estate.…. (Signed) Wm. Taylor. Witness, John Higgins, lithographer, Kilbirnie. Witness, John Turnbull, mill foreman, Kilbirnie.’ 3. The said William Taylor was predeceased by his only child, a daughter, Elizabeth Taylor, named in the said will, who died on 3rd October 1912, and survived by his widow, who is the party of the third part. He was also survived by a brother and sister, the said Hugh Taylor and Mrs Janet Taylor or Martin, who as executors are the parties of the first part, and who also as individuals are among the parties of the second part. The other parties of the second part are the whole children of a predeceasing brother Robert Taylor. The parties of the second part are the whole next-of-kin and heirs in mobilibus of the said deceased William Taylor. 4…. The amount of the moveable estate as given up in the inventory after deduction of debts and funeral expenses was £2952, 1s. 2d., and the value of the heritable estate was £550. In the moveable estate is included a sum due under a policy of the Northern Assurance Company, Limited, on the life of the deceased, valued as at date of death at £449, 8s, 5. In connection with the interpretation of the will and the division of the estate questions have arisen as to … (6) whether she ( i.e., the third party) is entitled to payment of £500 out of the residue of the estate in terms of the provisions of the Intestate Husband's Estate (Scotland) Act 1911. 6. The second parties contend … that the third party is not entitled to payment of any sum out of the residue of the estate by virtue of the Intestate Husband's Estate (Scotland) Act 1911. 7. The third party contends … that she is entitled to payment of £500 out of the residue of the estate, in terms of the provisions of the Intestate Husband's Estate (Scotland) Act 1911. …”

The following question of law was, inter alia, submitted—“2. Is the third party entitled, under the Intestate Husband's Estate (Scotland) Act 1911, to payment of £500 out of such portion of the whole estate, heritable and moveable, as has fallen into intestacy?”

Argued for the first and second parties—The second question of law ought to be answered in the negative. The Intestate Husband's Estate (Scotland) Act 1911 (1 and 2 Geo. V, cap 10) was copied from the corresponding Act which applied to England, namely, the Intestate's Estates Act 1890 (53 and 54 Vict., cap. 29), and it had been decided that that Act did not apply to cases of partial intestacy— In re Twigg's Estate, [1892] 1 Ch 579, per Chitty, J. Accordingly the Scots Act should also be held not to apply.

Argued for the third party—The second question of law fell to be answered in the affirmative. The question turned, not on what the testator tried to do in disposing of his estate, but on what, as things turned out, he had done. Counsel referred to the Intestate Moveable Succession (Scotland) Act 1855 (18 and 19 Vict. cap. 23), secs. 3, 9; in re Cuffe, [1908] 2 Ch 500, per Joyce, J.