Scottish Court of Session Decisions

Lord President.—This is an action of reduction raised by one of the next of kin of a certain deceased David Swanson, and concludes for reduction of his last will and testament, the grounds of reduction being insanity and facility. The executrix under the will and another put in defences in which they deny the allegations and table a prior settlement by the same testator which excludes the next of kin. The pursuer closed the record upon that statement, and then produced a certain deed called an agreement—and I am quite willing to take it as an agreement although in its form it is a unilateral deed—by which the beneficiaries under the first settlement, whom the pursuer alleges to be the whole beneficiaries under the first settlement, agree that if the second settlement is reduced they will proceed to halve the estate of the deceased between themselves and the next of kin. Before the Lord Ordinary the main argument seems, so far as one can judge from his Lordship's note, to have turned upon whether this change of front, so to speak, was timeously made, and his Lordship came to the conclusion that it was, although not made before the closing of the record.

In one sense, of course, the pursuer's title must be judged of as at the time he raises the action, and he cannot get a new title. You cannot introduce new pursuers, and you cannot introduce a new title for an old pursuer. But at the same time, where the objection to the pursuer's title is only tabled in the defence, I am bound to say that if it had been merely a question of the time—although I am not perhaps certain on the subject—I should have thought that, with the powers of amendment now existing, it would have been allowable to open up the record and to allow the pursuer to put in this new statement, which really does not give him a fresh title, but is really an answer to an answer which is made to him in the defences.

But a much more formidable, and what seems to me an unanswerable, answer to the pursuer's case, arises upon a matter which does not seem to have been argued before the Lord Ordinary, so far as one can judge from his note; and it is this, that the pursuer does not allege either that he is in a position to reduce the first settlement upon any grounds analogous to those upon which he seeks to reduce the second, or that he is in a position to allege that the persons who have an interest to maintain the first settlement are prepared to allow that settlement to be reduced and to go by the board. On the contrary, what he alleges is that those parties propose to take under the first settlement, and then to make a distribution of the property with the pursuer.

Now, I am absolutely unable to see how that helps the pursuer one bit in the action which he now raises. The pursuer's only right to raise an action at all is because he has a title as next of kin. A good title as next of kin to reduce a settlement is a title which is founded on interest. If it were not the law of Scotland that in default of a settlement the next of kin took the property, he would not have a title to raise the action. The law of Scotland might be different. It might not give the right of succession to the next of kin, but might give it to someone else; and I take it that the right to reduce the settlement would then leave the next of kin and would go to those other persons. Now, the moment that another settlement is tabled which cuts out the next of kin, it seems to me perfectly clear that the title of the next of kin is gone because their interest is gone—their interest, that is to say, as next of kin; and it seems to me confusing the matter altogether to say, as the pursuer's counsel now says, that he has got an interest in the sense that he has bargained for getting something of the estate from the people who are really entitled to it—namely, the beneficiaries under the first settlement. According to that, anybody might have a right of reducing a settlement if they were allowed to simply bargain with somebody who had right in a former settlement, and then say—“In order to make this right of mine available I propose to reduce the later settlement.” I think the whole matter is rested upon confusion. It seems to me the present pursuer's title and interest are gone unless he is in a position to say he is as able to get rid of the first settlement as he is of the second. On the contrary, he does not say that at all, and therefore, I am of opinion that the action ought to be dismissed. Parties are not agreed on the other side as to whether they really have here got the whole of the next of kin; and before we could allow an issue, as was done by the Lord Ordinary, that disputed matter of fact would have to be cleared up. But I do not think that is necessary, because the agreement says the first deed, so far from being reduced, still stands; and if the first deed stands, it seems to me that the title of the pursuer is gone.

Lord M'Laren.—I agree with your Lordship. I think that the only title put forward in this summons is a title as next of kin. You find that title in the first article of the condescendence, and there is no other averment of title. Now, it has always been recognised as a good answer to any claim of reduction at the instance of an heir-at-law or the next of kin, that the only effect of the reduction would be to set up an earlier deed; and that is the point taken against the pursuer in this case. I am not of opinion that the objection to the title can be obviated by an agreement between the next of kin and the parties interested in maintaining an earlier deed, because, while agreeing with your Lordship's observation as to the ground of decision, I should be disposed to go further. I think the only effect of the agreement put forward is to put the pursuer in the position of assignee of the legatees or beneficiaries in the first deed; and as an assignee can be in no better position than the cedent, it would be necessary that he should be the pursuer in the action. I should not be disposed to allow the introduction of a new pursuer in an action of reduction to set aside a deed, and I think that is in substance what is here proposed, viz., to introduce as pursuers in the action the beneficiaries in the first deed. What their rights might be if they chose to sue in their own name is another matter; but that would require a new action. This objection is one that is by no means confined to actions of reduction. It applies to cases raising questions of construction of deeds, and it was the subject of a decision in the House of Lords in the case of Kirkpatrick in 1874. The view which prevailed was that the attempt to set aside a second deed on the ground of the omission of the word “dispone” must fail, because there was a prior deed in existence which was correctly expressed according to Scots law language. Even in intestate successions it has always been considered to be a good objection to the title of an heir who is claiming a service, that you can shew that there is a nearer heir in existence, although that nearer heir may not be coming forward to claim in his own name. The ground in all these cases is want of interest in the person who is making the claim. I think that the objection of want of interest must be judged of as at the date of the summons, and that it cannot be cured by an arrangement such as is set forth in this case.

Lord Pearson.—I am of the same opinion.

LORD KINNEAR was absent.