BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paxton's Trs v Cowie [1886] ScotCS CSIH_1 (31 May 1907)
URL: http://www.bailii.org/scot/cases/ScotCS/1886/1886_13_R_1191.html
Cite as: (1886) 23 SLR 830, (1886) 13 R 119, 23 SLR 830, [1886] ScotCS CSIH_1

[New search] [Printable version] [Help]


JISCBAILII_CASE_SCOT_PROPERTY_TRUSTS_SUCCSESSION

31 May 1907

Paxton's Trustees
v.
Cowie, &c.

vol. xiii.] COURT OF SESSION, &c. 1191

No. 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

2d Division.

with three consulted Judges. Lord Kinnear.

M.

William Paxton and Others (James Paxton's Trustees),

Pursuers and Real Raisers.

Mrs Jane Cowie and Others, Claimants (Reclaimers).-D.-F, Mackintosh

-Blair.

Mrs Jane Aikman and Others, Claimants (Respondents).- Pearson-M' Watt.

Succession-Legacy-Accretion.-When a legacy is given to a plurality of persons, named or sufficiently described for identification, " equally among them," or " in equal shares," or " share and share alike," or in any other language of the same import, there is (in the absence of expressions by the testator importing a contrary intention) no room for accretion in the event of the predecease of one or more of the legatees, and this, whether the gift is in liferent or in fee to the whole equally, or whether the subject of the gift be residue or a sum of fixed amount, or corporeal moveables.

A testator directed his trustees to divide his whole estates into two equal parts, and to divide the one part among two of his brothers and his whole sisters, share and share alike, the children of a predeceasing brother or sister taking their parent's share, and to divide the other part as follows :-

" .£200 to my late wife's sister Margaret; in the event of her predeceasing me, said sum of £200 to be paid to my sister Jane; the remaining portion to be equally divided between my late wife's sisters Jane and Mary, my late wife's brother Robert, and my late wife's niece Jeannie." His wife's brother predeceased the traster, and on Ms own death his wife's sisters Jane and Mary and her niece claimed, jure accrescendi, the share which would have gone to the predeceasing brother. Held (by a Court of seven Judges, rev. judgment of Lord Kinnear) that the above rule was the rule of the law of Scotland, that it applied to the deed in question, that there were no expressions in the deed importing a contrary intention, and in consequence that the predeceasing brother's share did not accresce to the shares of the survivors, but passed as intestate succession of the truster to his heirs in mobilibus.

Torrie v. Munsie, May 31, 1832, 10 S. 597, followed.

Robertson v. M'Vean, Dee. 10, 1819, Hume, 273, overruled.

James Paxton, Bellsford Bank, Kilmarnock, died on 16th January 1884, leaving a trust-disposition and settlement, dated 16th January 1878, by which he conveyed his whole estates, heritable and moveable, to trustees, and after directing payment of his debts, provided, in the second place, as follows:-" My trustees shall, as soon after my decease as they shall find convenient and practicable, divide the whole of my estate into two equal parts, and shall divide the one part among my two brothers John and William, and my whole sisters and their respective families, share and share alike, the families of a deceased brother or sister taking their parent's share, whether such brother or sister shall have predeceased me or not; and shall divide the other part of my said estate as follows:-£200 to my late wife's sister Margaret Smith or Crabbie; in the event of her predeceasing me, said sum of £200 to be paid to my sister Jane Paxton or Cowie, the remaining portion to be equally divided between my late wife's sisters, Jane Brown Smith or Aikman, Mary Ann Smith or Swanston, my late wife's brother Robert Smith, and my late wife's niece Jeannie Aikman Swanston; in the event of said Mary Ann Smith or Swanston predeceasing me, her portion to be equally divided amongst her surviving daughters." The truster then went on to declare that Ms house and garden at Bellsford Bank should form no part of the estate to be divided as before mentioned, but should be conveyed to his wife's sister, the foresaid Mrs Jane Brown Smith or Aikman, in liferent, and to his wife's niece, the said Jeannie Aikman Swan-ston, in fee. The trust-deed contained no other purposes.

1192 CASES DECIDED IN THE [fourth series.

No. 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

The truster had three brothers, viz., William and John, mentioned in the deed, and George. George and John predeceased the truster, leaving issue. He had also four sisters, Jane (Mrs Cowie), Agnes (Mrs Bunten), Isabella (Mrs Stewart), Mary Ann (Mrs Carswell). Mr and Mrs Stewart and Mr and Mrs Carswell predeceased him, leaving issue.

Of the four persons between whom the second half of the trust-estate was directed to be equally divided (after payment of the legacy of £200), and who were exhaustive of the truster's deceased wife's nearest relatives (Jeannie Aikman Swanston being a daughter of Mrs Mary Ann Smith or Swanston), all survived the truster except Robert Smith, who predeceased him without issue.

On the death of the truster the trustees brought a multiplepoinding to have it determined to whom belonged the share which would have fallen to Robert Smith had he survived.

Claims were lodged (1) for Mrs Cowie and others, the truster's heirs in mobilibus, who maintained that the share in question had fallen into intestacy; and (2) for Mrs Aikman, Mrs Swanston, and Jeannie Aikman Swanston, the three surviving legatees under the second head of the second purpose, who each claimed one-third of the share jure accrescendi.

On 5th January 1886 the Lord Ordinary (Kinnear) repelled the claim for the first set of claimants, sustained that for the second set, and ranked and preferred them in terms thereof.*

* " Opinion.-The claimants preferred are in the position of residuary legatees, sharing among them one-half of the residue after payment of two special legacies, and are not special legatees in separate and unconnected bequests. I do not think it doubtful that the testator intended that they should share among them the entire half of the estate bequeathed to them, to the exclusion of his own relations, to whom he had bequeathed the other half. It is equally certain that he did not intend to die intestate as to any portion of his estate. It appears to me to follow, that the share which would have gone to Robert Smith, had he survived the testator, must be divided among the surviving legatees of that portion of the estate. It is admitted that this must have been the case if the testator had not directed that the half in question should be ' equally' divided among the legatees named. But it is said that the direction that the division shall be equal imports a separate legacy of an equal portion to each of the legatees, and not a joint legacy of the whole. But if it is clear that the testator intended his wife's relations, whom he has named, to take one-half of the estate to the exclusion of his own next of kin, it does not appear to me to affect the inference which must otherwise have been drawn from that intention, that he has expressed in words his desire to favour these legatees equally, instead of leaving that to be implied in the general direction to divide. The counsel for the other claimants founded on Torrie v. Munsie, and the cases of Rose and Paterson there cited, and maintained that these decisions established a rule of law by which accretion as among legatees of residue, who are called nominatim, is excluded by a direction to divide equally or proportionally. The only general rule that these cases appear to me to establish is, that where a testator intends a number of legatees who are conjoined in words, but not in the matter of their legacies, to take each a separate and distinct share of a fund as special legatees, one of such legatees can take no benefit from the death of another, and any share that may have lapsed must fall into residue, or to the next of kin, as the case may be. But whether, in any particular case, the legacies are separate and distinct so as to exclude accretion, is a question of intention to be determined according to the ordinary rules of construction, The case of Torrie is no authority for the construction of a will expressed in different terms. The cases of Robertson (Hume, 273), Bannerman v. Bannerman (6 D. 1173), and Moir v. Moir (9 Macph.) shew that there is no rule of construction by which a direction for equal division must be held in itself to exclude accretion."

vol. xiii.] COURT OF SESSION, &c. 1193

No. 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

The heirs in mobilibus reclaimed, and after hearing argument the . Court, in respect of the importance of the question, appointed the cause to be heard before seven Judges.

Argued for the reclaimers;-The Lord Ordinary had fallen into error in sustaining the claim of the respondents. There was no accretion here, but intestacy, as regarded Robert Smith's share. That appeared (1) from the terms of the trust-deed apart from any settled rule of construction. In a general sense it was no doubt true that the truster had directed that his property should be divided into two portions, one for the benefit of his own relatives, and the other for that of his wife's, but it was impossible to deduce from that the principle of construction, that he intended to benefit each of these families as a class, with the right of survivorship implied. In the first place, in regard to his own relatives he had expressly provided otherwise in the event of the predecease of any of them, so that as far as that analogy went it was adverse to the respondents. The terms of the second branch of the clause were equally unfavourable, as appeared from these considerations-that the truster had left, not an equal share with the others, but a specific sum of £200 to one of his wife's sisters, Mrs Crabbie; that the event of Mrs Crabbie's predecease was provided for, not by directing that this £200 should accresce to the shares of his wife's remaining relatives, but by a destination over to a relative, not of his wife's, but of his own; that the predecease of Mrs Swanston, another of his wife's sisters, was provided for by a destination over to her daughters; and that, while the trust-deed was exhaustive of the truster's wife's relatives, it put one of her nieces on the same level as her brother and sisters. If Mrs Swanston, as well as Robert Smith, had predeceased the truster, this anomalous result would have followed on the respondents' view, that her daughters would have kept her share, and also have got a portion of the share set free by Robert Smith's predecease. Then, if Mrs Crabbie and Mrs Cowie had both predeceased the truster, would the £200 left to them have fallen into intestacy, or have gone, like Robert Smith's share, by accretion to the respondents ? In short, the scheme of the trust-deed left no place for accretion. The truster had simply left a number of legacies to persons who happened to be his wife's sisters, or brother, or niece, but who, so far as the construction of the deed went, might equally have been unconnected strangers, and, as there was no clause of residue, on the predecease of any of the legatees his or her share necessarily went into intestacy. Had the respondents maintained that the whole surviving legatees were entitled to have their legacies increased in respect of Robert Smith's death, that might have relieved them of some of their difficulties; but, on the contrary, their case was that the second purpose dealt with what they called two residues-one for the truster's own relatives, and the other for his wife's, and that these two residues were to be regarded as entirely distinct. So far the question had been considered as if there was no settled rule of construction one way or the other, but (2) it had been fixed by a long course of authority that where a legacy was left to two or more persons " equally," or with other such word of severance, the legacy was not joint but several, so that, if one of the legatees predeceased the truster, his share lapsed, and there was no place for accretion, unless the testator by the terms of his deed otherwise gave clear evidence of a contrary intention. If, on the other hand, there were no words of severance, the legacy wag joint, and the shares of predeceasing legatees accresced to the survivors. It was for long a matter of dispute among the civilians whether the jus accrescendi did not extend to the former case, where the grantees were said to be conjuncti verbis tantum, as well as to the latter, where they

1194 CASES DECIDED IN THE [fourth series.

No. 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

were conjuncti re et verbis, but in the end the more limited application prevailed. It was so stated as the law of Scotland by Lord Stair,1 who discussed the question at some length, and was so held in the cases of Paterson v. Paterson2 in 1741, and Rose v. Roses3 in 1782. In these cases the legacies were of equal shares of specific sums of money, as in the recent case of Wauchope 4 it was a legacy of equal shares of certain plate and pictures, but in Torrie v. Munsie5 the doctrine was carried beyond shares of specific legacies and applied to shares of general bequests or residue, thus negativing the theory founded on by the respondents, that the doctrine, if it was law at all, was exclusively applicable to specific legacies. Paterson, Rose, and Torrie were approved of by Lord Moncreiff in Tulloch v. Welsh,6 though he there decided for accretion on the terms of the particular deed, and by Lord Medwyn and Lord Moncreiff in Breadalbane's Trustees v. Pringle,7 where a liferent was left to two daughters equally, of whom one claimed her legal rights, and it was held that there was no accretion of the share set free in favour of the other. In Hamilton v. Hamilton,8 which was decided by the same Court that decided Torrie v. Munsie, the question of accretion was not raised, though on the facts it emphatically might have been. This rule was recognised by all the more recent writers as a settled principle of the law of Scotland,9 and was also the law of England.10 [The Lord President referred to Buchanan's Trustees.11] That case was important as being the most recent authority, and also because the case of Robertson founded on by the other side was there cited. Now, against this chain of authorities there was nothing else than the three eases referred to by the Lord Ordinary. The earliest of these was Robertson v. M'Vean,12 which, though decided in 1819, was not reported until 1839. It certainly gave some countenance to a distinction in this matter between equal shares of a specific legacy and equal shares of residue, but in doing so proved more than the respondents desired, for the accretion which was held to take place favoured the whole body of surviving legatees, not a special class of them-it gave no countenance, in short, to the theory of a double residue. This was even more pointedly true of the second of the cases referred to by the Lord Ordinary,-that of Banner-man,13-which was a decision by Lord Wood in the Outer-House, for there the claim of two surviving children of a family of three to take jure ac-crescendi the share of the third child, who had predeceased the testator, was rejected in favour, not of the testator's heir ah intestato, but of the general body of his legatees. The claim by the two surviving

1 Stair, iii. 8, 27.

2 Paterson v. Paterson, June 4, 1741, M. 8070.

3 Rose v. Roses, Jan. 15, 1782, M. 8101.

4 Wauchope, Dec. 22, 1882, 10 R. 441.

5 Torrie v. Munsie, May 31, 1832, 10 S. 597.

6 Tulloch v. Welsh, Nov. 23, 1838, 1 D. 94, per Lord Moncreiff at p. 96.

7 Breadalbane's Trustees v. Pringle, Jan. 15, 1841, 3 D. 357, per Lord Medwyn at p. 364, and Lord Moncreiff at p. 366.

8 Hamilton v. Hamilton, Feb. 8, 1838, 16 S. 478.

9 Bell's Princ, sec. 1882; Menzies' Lectures on Conveyancing, 3d edn, p. 500; Bell's Lectures on Conveyancing, 2d edn. ii. 989; M'Laren on Wills and Succession, i. 678.

10 Jarman on Wills, 4th edn. ii. 257; Robertson v. Fraser, July 17, 1871, L. R., 6 Chanc. App. 696.

11 Buchanan's Trustees, June 15, 1883, 20 S. L. R. 666.

12 Robertson v. M'Vean, Dec. 10, 1819, Hume, 273.

13 Bannerman v. Bannerman, Dec. 15, 1843, 6 D. 1173, 16 Scot. Jur. 326.

Vol. xiii.] COURT OF SESSION, &c. 1195

No. 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

children in that case to the exclusive benefit of the jus accrescendi was precisely analogous to the claim of the respondents here. If Bannerman's case was an authority for accretion here at all it was an authority for ac-cretion in favour of all the truster's legatees, in proportion to the amount of their legacies, for Lord Wood considered that the fact the legacies were of unequal amounts did not prevent accretion. It was, however, to be observed that both Robertson's case and Bannerman's went largely on the other provisions of the deeds respectively in question, as evidencing an intention that accretion should operate. In particular, in the one instance, the heir's interest under the deed was expressly limited to certain specified subjects; in the other instance he was entirely excluded. The remaining case referred to by the Lord Ordinary, that of Moir,1 was a case of accretion under the exercise of a power of apportionment, and was therefore no authority in regard to a testamentary writing. The result therefore of these three cases was this, that there was nothing in them to qualify the general rule on which the reclaimers founded, or if that rule required to be qualified by the statement that it applied only to cases of specific legacies, and not to cases of general residue, that qualification did not benefit the respondents exclusively, who were not the whole residuary legatees of the truster, if they could be called residuary legatees at all.

Argued for the respondents;-The scheme of the trust-deed was a bipartite division of the trust-estate-one half to the truster's own relatives, the other to his wife's. It was certain that he did not intend to benefit his own relatives beyond their half, and equally so that he did not intend to die intestate as regarded the second half; the only alternative therefore was, that he intended to benefit his wife's surviving relatives, two of whom were certainly his peculiar favourites, for he left them his house, garden, and furniture in liferent and fee respectively, in addition to their share of the rest of his estate. But it was said that this obvious intention must yield to a settled rule of construction, in accordance with which the truster having declared that the second half of his estate was to be " equally" divided between his wife's sisters, brothers, and niece, he must be held to have declared against accretion and for intestacy, i.e., for his own relatives-in the event of any of his wife's relatives predeceasing him-and in support of this rule a number of authorities, beginning with Lord Stair, were cited. But Stair rightly read did not bear out the rule in its entirety; he made it apply to fidei commissars or special legatees only, not to heirs,-that was to say, residuary legatees. That was plain, particularly from the third head of his book iii. tit. 8, sec. 27, where he said, " If the testator say,' let Titius be my heir in the half, and let Seius and Maevius be my heirs equally in the other half,' here Seius and Maevius are conjunct in words and not in the matter, because their portions are severed, and yet their portions accresce to each other and not to Titius, who is wholly disjunct; and that from the same presumed will of the defunct, as having considerately put them in one sentence for that purpose. But this takes place only in institution and substitution of heirs, that the testator die not partly testate, but not in legacies and fidei commisses; for in these the portion of the conjuncts only in words, not being accepted, doth accresce to none, but returneth to the heir." The case here figured was precisely the present, Titius standing for the truster's own relatives, and Seius and Maevius for his wife's. The two earliest cases founded on by the reclaimers, Paterson2 and Rose,3 were

1 Moir's Trustees, June 17, 1871, 9 Macph. 848, 43 Scot. Jur. 462.

2 Paterson v. Paterson, June 4, 1741, M. 8070.

3 Rose v. Roses, Jan. 15, 1782, M. 8101.

1196 CASES DECIDED IN THE [fourth series.

No. 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

cases of legacies, and therefore, in accordance with Stair's distinction,

accretion was rightly rejected. The subject of the next case of Torrie v. Munsie 1 was undoubtedly a bequest of residue, and if Stair's distinction had there been deliberately considered and rejected that would have been a strong authority for the reclaimers, but though Stair and the civil law were referred to by Lord Glenlee, who gave the leading opinion, it was plain that the real ground of judgment was simply Paterson and Rose, and consequently the question was left exactly where it stood on these cases. The subsequent decisions and opinions of the institutional and text writers founded on by the reclaimers went no further-they merely repeated Paterson, Rose, and Torrie- that was to say Paterson and Rose alone. In other words while the reclaimers' authorities supported the one side of Stair's dictum-that relating to legacies,-they did not, when rightly read, in any way infringe upon the other-that relating to heirs or residue. That being so, there was no inconsistency between the two lines of authority, for the argument which, as the report bore, was given effect to in Robertson v. M' Vean,2 proceeded entirely on the distinction between special legacies and general settlements-that in the one the jus accrescendi had noplace, in the other it had. This rule was based on the presumed will of the testator, who in special legacies could not be supposed to have intended to prefer his surviving special legatees to his executor-nominate or next of kin as the case might be, whereas in a general settlement he obviously intended to exclude his heirs ab intestato absolutely. The next case of Bannerman 3 adopted and applied this argument, while in the third case of Moir4 both Robertson and Bannerman were approved of, it might be obiter, by Lord Cowan and Lord Benholme. Now the present case was obviously not one relating to special legacies. The settlement was a settlement of the truster's whole estates, and the second purpose was in effect a clause of residue, though not so in name. Its scheme provided for a double residue, however, one for each of the families, and therefore the jus accrescendi did not operate to carry anything out of the one residue into the other.

At advising, the opinion of the Court (the Lord President, the Lord Justice-Clerk, Lord Mure, Lord Shand, Lord Young, Lord Craighill, and Lord Rutherfurd Clark) was delivered by the Lord President.

Lord President .-The trust-disposition and settlement of Mr Paxton specially conveyed a house and garden occupied by himself in favour of one of the sisters of his deceased wife in liferent, and of her niece in fee. With this exception, Ms whole estate was disposed of by the second purpose of the trust, the first purpose being the formal clause for payment of debts, &c.

By the second purpose the trustees are directed to divide the estate into two equal parts, one of which parts is to be divided among two of Ms three brothers and his three sisters, and their respective families, share and share alike, children taking their parents' share in the event of their parents predeceasing the testator. No question arises on the construction of this first portion of the second purpose.

The clause proceeds in the following terms. The trustees " shall divide the

1 Torrie v. Munsie, May 31, 1832, 10 S. 597.

2 Robertson v. M'Vean, Dec. 10, 1819, Hume, 273.

3 Bannerman v. Bannerman, Dec. 15, 1843, 6 D. 1173, 16 Scot. Jur. 326.

4 Moir's Trustees, June 17, 1871, 9 Macph. 848, 43 Scot. Jur. 462, per Lord Cowan at p. 852, and Lord Benholme at p. 853.

vol. xiii.] COURT OF SESSION, &c. 1197

No, 198.

July 16, 1886.

Paxton's Trustees v. Cowie, &c.

other part of my estate as follows :-£200 to my late wife's sister Margaret Smith or Crabbie; in the event of her predeceasing me, the said sum of £200 to be paid to my sister Jane Paxton or Cowie; the remaining portion to be equally divided between my late wife's sisters Jane Brown Smith or Aikman, Mary Ann Smith or Swanston, my late wife's brother Robert Smith, and my late wife's niece Jeannie Aikman Swanston." Robert Smith predeceased the testator, and the question for decision is, whether his share of the fund directed to be equally divided between himself and three other persons passes to these other legatees by accretion, or is, in the event which has happened, undisposed of, and falls to the next of kin by reason of intestacy.

The legacy to the four persons named is expressly directed to be equally divided between them.

Now, there is a rule of construction settled by a series of decisions beginning in the last century, and coming down to the case of Buchanan's Trustees in 1883, to the effect that when a legacy is given to a plurality of persons named or sufficiently described for identification " equally among them," or " in equal shares," or " share and share alike," or in any other language of the same import, each is entitled to his own share and no more, and there is no room for accretion in the event of the predecease of one or more of the legatees. The rule is applicable whether the gift is in liferent or in fee to the whole equally, and whether the subject of the bequest be residue or a sum of fixed amount or corporeal moveables.

The application of this rule may, of course, be controlled or avoided by the use of other expressions by the testator importing an intention that there shall be accretion in the event of the predecease of one or more of the legatees. But in this case there are no such expressions to be found. There is indication of a general intention that the estate should be equally divided between his own relations and his deceased wife's relations. But as regards the division between those of his wife's relations who are made legatees, there are no words or expressions indicating intention, except those contained in the clause specially under construction.

Much reliance was placed in the argument for the parties contending for the application of the doctrine of accretion, on the case of Robertson v. M'Vean, which was decided in 1819. But in the face of the series of decisions already referred to, it is impossible, and would be most unsafe, to give any weight to a case so obscure and ambiguous, which was not known to the profession for twenty years after it was decided, the report of which seems to leave it in doubt whether it was decided on general principles or on specialties, and which has never been recognised in any of our treatises or books of practice, or in any subsequent judgment of the Court.

That is the opinion of the Court, but my brother on my right has an explanation to give of the case of Robertson, which he will now make.

Lord Justice-Clerk .-I have looked into the session papers in Lord Mon-creiff's collection in the case of Robertson. He seems to have been of counsel in the case, and has preserved a short note of what fell from the Bench at advising. The petition and answers were written by Mr Greenshields and Lord Fullerton, and deal very ably with the points which arise in the present case. But there was one peculiarity in the case which may have in some measure affected the judgment.

1198 CASES DECIDED IN THE [fourth series.

No. 198.

July 16, 1889.

Paxton's Trustees v. Cowie, &c.

The decision is dated in 1819. But six years before, in 1813, Lord Balgray,

as Lord Ordinary, had reported the case to the Court on various points, some

of which were decided; and in regard to the claim to the share of Thomas Robertson, who predeceased the testator, his father, they remitted the case to the Lord Ordinary.

On the 17th November 1813 Lord Balgray found "That from the terms of the general settlement executed by George Robertson, the share of Thomas Robertson, who predeceased his father, must be held as accruing to the respondent, Mrs M'Vean, and decerns and declares accordingly."

This interlocutor was allowed to become final; and it was not until after an interval of six years that the claimant renewed the contention. He was ultimately, without opposition, allowed to bring the judgment before the Court, but it appears from the pleadings that these facts were strongly founded on, and there was some evidence that he had expressly stated that he meant to ac-quiesce in the Lord Ordinary's finding.

While, therefore, the case certainly raised the same question as that before us, it arose under very unfavourable circumstances, which must have impressed the Court adversely to the petitioner.

The note of what fell from the Bench, which Lord Moncreiff has written on the papers, is as follows:-

" Hermand.-Thinks interlocutor quite right. Goes over ground stated in answers.

" Balmuto.-Of same opinion. Thinks interlocutor could not be opened.

" Balgray, Succoth, President, of the same opinion.

" Whole turns on distinction between special legacy and general settlement."

I have thought it right to mention these circumstances, as they seem to dimmish the importance of the decision, and perhaps explain in some measure why it has not been followed.

I cannot resist the opposite current of authority since the date of this judgment.

The Court pronounced the following interlocutor:-" In accordance with the opinions of all the Judges present at the hearing, recall the interlocutor of the Lord Ordinary reclaimed against: Repel the claim for Mrs Jane Brown Smith or Aikman, and others; sustain the claim for William Paxton and others; rank and prefer them in terms thereof: Find all the claimants entitled to expenses out of the fund in medio: Allow accounts," &c.

H. B. & F. J. Dewar, W.S.-H. & H. Tod, W.S.-Hunter, Blair, & Cowan, W.S.-Agents.

13 R 1191

The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1886/1886_13_R_1191.html