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Facts:
The Intestate Moveable Succession (Scotland) Act 1855, enacts—Section 1—“(1) In all cases of intestate moveable succession in Scotland accruing after the passing of this Act where any person who had he survived the intestate would have been among his next-of-kin shall have predeceassed such intestate, the lawful child or children of such person so predeceasing shall come in the place of such person, and the issue of any such child or children, or of any descendant of such child or children who may in like manner have predeceased the intestate shall come in the place of his or their parent predeceasing, and shall respectively have right to the share of the moveable estate of the intestate to which the parent of such child or children or of such issue if he had survived the intestate would have been entitled. …” Section 2—“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 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.”
Where an intestate, leaving heritable and moveable estate, was survived by sisters and predeceased by a brother who was survived by daughters (nieces of the intestate) and by the children of a predeceasing son (a nephew of the intestate), the children consisting of a son (a grandnephew of the intestate) who was the latter's heir in heritage, and two daughters (grandnieces of the intestate), held that in terms of sections 1 and 2 of the Intestate Moveable Succession (Scotland) Act 1855—(1) the nieces of the intestate took no share in the intestate succession, and (2) the grandnieces had right to a share of the moveable estate equal in amount to the excess in value over the heritage of such share of the whole estate, heritable and moveable, as their predeceasing parent, the intestate's nephew, would have taken on collation.
Mrs Anne Hardie or Adam, residing at Hillhouse, Locharbriggs, Dumfries, widow and executrix-dative of Robert Adam, pursuer and real raiser, brought an action of multiplepoinding and exoneration against herself as an individual and others in order to determine certain questions arising out of the intestate succession of her husband.
The pursuer averred, inter alia—“(Oond. 1) Robert Adam of Hillhouse, Locharbriggs, near Dumfries, died on the 26th day of October 1918, survived by his widow and by various sisters and others, representatives of a deceased brother and sisters as after mentioned. He left no issue. (Cond. 2.) The said Robert Adam died intestate, and his widow, Mrs Anne Hardie or Adam, the pursuer and real raiser, was confirmed executrix-dative qua relict of the deceased … (Cond. 3.) The estate of the deceased Robert Adam consists of heritable property known as Hillhouse, Locharbriggs, aforesaid, of the value of about £500, and of moveable estate the gross value of which was given up in the inventory for confirmation at the sum of £14,585, Os. 1d. sterling. (Cond. 4.) The pursuer has made such progress with the winding up of said estate that the time has come to deal with the matter of distribution. Questions have been raised as to the persons entitled to and as to the extent of their rights in the estate. These arise from the fact that the deceased left a widow but no issue surviving, and his nearest relatives are sisters and the representatives of a deceased brother and sisters. The heir-at-law is the grandson of a deceased brother of the said Robert Adam, which brother predeceased the said Robert Adam, and at the date of the death of the said Robert Adam was represented by daughters and a son, and a son and daughters of a predeceasing son. In particular, questions have been raised as to the effect of the provisions of the Intestate Moveable Succession Act… (Cond. 5.) The fund in medio consists of the whole moveable estate which belonged to the said Robert Adam at the time of his decease, under deductions of all the debts and liabilities of the said Robert Adam, and of the expenses of administration and of this action…”
Claims were lodged by (1) the widow of the deceased Robert Adam; (2) Miss Elizabeth Adam, one of the two surviving sisters of the intestate; (3) Mrs Jane Adam or Langmuir, the other surviving sister; (4) Miss Margaret M'Naught, Mrs Kate M'Naught or Spence, and Alexander M'Naught, the whole children of the late Mrs Margaret Adam or M'Naught, a predeceasing sister of the intestate; (5) John Taggart, only child of the late Mrs Agnes Adam or Taggart, one of the intestate's sisters; (6) Miss Grace Burns Simpson Adam, and Miss Margaret
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Adam, the whole children, along with their brother James Easton Adam, the heir in heritage of the intestate of the late Robert Adam, who was the son of James the only brother of the intestate; (7) Mrs Agnes Adam or Maxwell and others, the five surviving children of the intestate's only brother the late James Adam. The claimants Miss Grace B. S. Adam and her sister averred, inter alia—“(Cond. 6.) The said late James Adam had six children of whom his elder son, Robert Adam, predeceased the intestate. The claimants and their brother James Easton Adam (who is the heir in heritage of the deceased intestate) are the whole children of the said Robert Adam, who was a nephew of the deceased intestate. The said James Easton Adam has taken the heritage as heir, and he does not claim to exercise his right of collating under section 2 of the Intestate Moveable Succession (Scotland) Act 1855. Therefore the claimants claim to be ranked and preferred each to one-half of the excess in value over the value of the heritage of one-fifth share of the whole estate, heritable and moveable, subject to the deduction from said estate of the legal rights of the intestate's widow thereto (including her claim for £500 in terms of the Intestate Husband's Estate (Scotland) Act 1911).”
The claimants Mrs Agnes Adam or Maxwell and others averred—“(Cond 5.) The said James Adam, who predeceased the intestate as aforesaid, would, had he survived the intestate, have been among his next-of-kin, and would also have been his heir in heritage, and entitled to collate the heritage with the moveable estate. The said Robert Adam, his elder son, had he survived the intestate would also have been entitled to collate the heritage. Accordingly, the claimants, as the five surviving children of the said James Adam, are entitled, along with the representatives of their deceased brother Robert Adam other than James Easton Adam the heir in heritage, to come in place of the said James Adam, and have a right to the share of the moveable estate of the intestate to which the said James Adam, if he had survived the intestate, would have been entitled. The said James Easton Adam was not entitled to collate the heritage. The claimants accordingly each claim to be ranked and preferred on the fund in medio to the extent of one-sixth of a sum equal to one-fifth part of—(1) The value of the heritable estate of the intestate, under deduction of ( a) the proportion effeiring to the heritable estate of the sum of £500, to which the widow of the intestate is entitled by virtue of the Intestate Husband's Estate (Scotland) Act 1911; and ( b) all competent claims in name of terce; and (2) the value of the whole moveable estate, under deduction of ( a) the proportion effeiring to the moveable estate of the said sum of £500; and ( b) all competent claims in respect of legal rights to which the widow of the intestate may be found entitled, under deduction from the said one-fifth share of the value of the heritable estate falling to the heir in heritage.”
The claimants Miss Grace B. S. Adam and her sister pleaded, inter alia—“1. The claimants being the sisters of the intestate's heir-in-lieritage, who is a grandson of the intestate's brother, are entitled to be ranked and preferred in terms of their claim. 2. Alternatively, the claimants, being the sisters of the intestate's heir-in-heritage, who is a son of the late Robert Adam, who, if he had survived would have been the heir-in-heritage of the intestate, are entitled to be ranked and preferred in terms of their claim.”
The claimants Mrs Agnes Adam or Maxwell and others pleaded—“The claimants being the whole children of the intestate's brother other than the heir-in-heritage are entitled to be ranked and preferred in terms of their claim.”
On 1st December 1920 the Lord Ordinary (
Sands ) found “( first) that the claimants, the surviving children of James Adam (1), take no share of the intestate succession; and ( second) that the claimants the daughters of Robert Adam have right to a share of the moveable estate equal in amount to the excess in value over the heritage of such share of the whole estate, heritable and moveable, as their predeceasing parent Robert Adam had he survived the intestate would have taken on collation.”Opinion.—“This case raises novel and difficult questions under the Moveable Succession Act 1855. The nature of these questions can be made much clearer by an imaginary table than by explanations which would necessarily be involved:—