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SCOTTISH_HoL

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(1855) 1 Paterson 507

REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.

No. 74

Hercules Scott and Others, Appellants

v.

George Scott and Lord Benholme and Others, Respondents

MAY 10, 1855.

Subject_Legacy—Disposition and Settlement—Trust Deed—Construction—Nearest Relations—Full and half blood—

A testator, after conveying his property, heritable and moveable, to trustees, directed the residue, after fulfilment of the trust purposes, to be paid to his nearest relations then alive. He left no issue, and no relations, but children of two full brothers, and children of a sister uterine. Throughout his settlement his sister uterine was spoken of simply as his sister, and her children as his nephews and nieces.

Held (affirming judgment), That the nephews and nieces by the half blood were entitled to participate in the residue equally with the nephews and nieces of the full blood. ¹

The pursuers appealed against the judgment—1. Because the appellants and James Robert Scott, as the children of the testator's brothers german, or such of them as shall be alive at the

_________________ Footnote _________________

¹ See previous report 14 D. 1057; 24 Sc. Jur. 649. S. C. 2 Macq. Ap. 281: 27 Sc. Jur. 372.

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period when the residue of his means and estate becomes divisible, will be the only parties called by the testator in his settlement to succeed to the said residue under the description of his “nearest relations then alive:” and in that character the appellants and the said James Robert Scott, surviving at the said period, or those in their right, will be entitled to the whole of the residue, to the exclusion of the respondents, the children of the testator's sister uterine, or such of them as may also happen to be then alive. 2. Because, according to the law of Scotland, the appellants and James Robert Scott, or those of them who are alive at the period when the residue becomes divisible, will be the testator's whole “nearest relations then alive;” and there is nothing in the tenor or terms of the testator's settlements to indicate that he attached to the words above quoted any signification different from that assigned to them by law, but, on the contrary, these settlements demonstrate that the testator considered the appellants and Mr. James Robert Scott to be nearer relations to him than the respondents. 3. Because, even if the terms of the settlement should be considered doubtful or ambiguous, the appellants and the said James Robert Scott, or such of them as shall be alive when the residue becomes divisible, will be the sole next of kin and legal heirs in moveables of the late James Scott, and entitled as such, by themselves or their assignees, to succeed to the whole of the said residue. Grotius Inleydinge Tot de Hollandische Rechts Geleertheyt; 2 Burge, 857; Voet, xxviii. 5,17; Scots Acts, 1681, cap. 79; Brown, M. 16,679; Laing, 16th Nov. 1814, F.C.; Stair, iii. 4, 6; Ersk. iii. 8, 2; Wharrie v. Wharrie, M. 6599; Pope v. Whitcomb, 3 Mer. 689; Smith v. Campbell, 19 Ves. 400; S. C. Coop. Chan. Cases, 275; Brown's Trustees, M. 2318; Mahon v. Savage, 1 Sch. & Lefroy, 111; Norris v. Norris, 2 D. 220; Bell's Prin. § 1861; Ersk. iii. 8,8.

The respondents answered, that,—According to the sound construction of the deed, the respondents, or such of them as may be alive at the time of Mr. David Scott's death, will be entitled, under the provisions of the deeds, to share the residue of the trust estate equally with the appellants. Grieve v. Rawley, 10 Hare, 63.

Solicitor-General (Bethell), and Anderson Q.C., for the appellants.—It is settled in the law of almost all nations, that a gift to one's nearest relations means a gift to those who would take in the event of the testator's intestacy.—2 Burge's Com. 857; 4 ibid. 590–2; Voet, xxviii. 5, 17. As, therefore, by the law of Scotland in moveable succession, the full blood excludes the half blood, the appellants are alone entitled to the gift of the residue. This doctrine is assumed in Wharrie v. Wharrie, M. 6599. The case of Norris v. Norris, 2 D. 220, is not against this, for there the gift was to the whole of the nephews and nieces, and thus the rule was excluded. But here there is no indication in the will that the testator meant by the words anything else than what the law attributed to them. On the contrary, he seemed by the other gifts to give a clear preference to the children of the brother by the full blood.

Lord Advocate (Moncreiff), and Rolt Q.C., for the respondents, were not called upon.

Lord Chancellor Cranworth.—My Lords, I think the case now before your Lordships is one that is clear beyond the possibility of a doubt. When I say that, I do not mean to express a doubt that, if the words in the will had been merely that the testator gave the residue to his nearest relations, it would, according to the law of Scotland, mean those persons who would have taken the estate in case of his intestacy. But here the question is not who would take in the case of intestacy, because the testator has been his own interpreter of what he intended.

It is quite plain, that whatever the meaning of the term “nearest relations” may be in the abstract, it is here clearly and expressly to be understood, that the children of the half sister should be included, so as to give to the children of the brother as children of the full blood, and to the children of the half sister as children of the half blood, equal shares. It is perfectly clear that whatever may be the meaning to be attached to the term “nearest relations” in the abstract, wherever the testator gives to any of his nephews and nieces, he designates them as his nephews and nieces. The words that he makes use of are these:— “To Hercules Scott, his only son, £3000; and to each of his seven daughters, the sum of £1500; to Mrs. Isabella Robertson Scott, my sister, £500; to each of my nieces Jane and Helen Robertson, her daughters, £300.” He calls them both his nieces. He says—“To Mrs. Scott, my sister, £500,” —plainly intimating, that he considered her as being in the same category with his brothers:— “and in the event of the death of either of my said nieces, both of these legacies to go to the survivor; to my nephew Captain George Robertson Scott, £500; to my nephew Hercules James Robertson, £300;” and to the other three nephews, naming them, £300 each. And so he goes on, calling them all nephews and nieces, as well those who were the children by the half blood as those who were the children by the whole blood.

Without, therefore, going further into the case, it seems evident that the testator has been his own interpreter of what he meant to do, and has shewn clearly that by nearest relations he means those whom he has here designated as being his nearest relations, and whom he describes as being the children of his brother of the full blood, and the children of his sister by the half blood. I therefore move your Lordships that this interlocutor be affirmed, with costs.

Lord St. Leonards.—My Lords, as my noble and learned friend has told your Lordships, this is a simple case, turning entirely upon the words of this will. The testator has here told us,

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that he considers his relations of the half blood equally with those of the full blood as his relations. Indeed the expression he uses is rather more marked perhaps in the one case than in the other; for in speaking of the children of the brother, he speaks of them as the children of his brother so and so, while in speaking of the children of the sister he speaks of his nephews and nieces. The simple question in this case is, whether your Lordships can possibly exclude those whom he has described, in the plainest terms, as relations of an equal degree with the others. I think the question is one that admits of so little doubt, that it really involves nothing in the shape of argument; and therefore I agree with my noble and learned friend that the decision of the Court below should be affirmed, with costs.

Interlocutor affirmed, with costs.

Solicitors: Appellants' Agent, James Burness, S.S.C.— Respondents' Agents, Hope, Oliphant, and Mackay, W.S.

1855