Scottish Court of Session Decisions

Mr John Cox died on 16th January 1874, survived by his wife, but without issue. This Special Case was raised to determine the shares of his residuary estate falling to be divided amongst the following parties. The first parties were Sir James Coxe and Mrs Ivory, the surviving next of kin of the deceased. The second parties were the two children and the marriage contract trustees of one child of his brother George Cox, who predeceased Mr John Cox; and the third parties were his wife and a niece, daughter of his sister Mrs Ivory. The questions turned upon the construction of various deeds left by Mr Cox. On 24th December 1850 he executed a holograph will, by which, inter alia, he appointed his wife, and two brothers, who predeceased him, to be his sole executors, and he directed them to divide the residue of his means and estate equally among his next of kin, declaring that with respect to any of his next of kin who predeceased him leaving issue, such issue should succeed equally to their parent's share. By a holograph codicil, dated 7th November 1859, Mr Cox declared that if Robert Cox, only son of his late brother George, should succeed to Gorgie Mill as heir-at-law, his share of residue should be only one-half of what otherwise it would have been, and that the other half should be divided amongst his remaining residuary legatees in proportion to the sums otherwise falling to them. By this deed he also added his brother-in-law to be an executor along with the persons named in his former will. But by a holograph codicil, on 23d November 1871, he withdrew that name and added those of Robert Cox, his nephew, and Andrew M'Culloch, his clerk, to be trustees along with others mentioned in his former will. On 10th August 1872 Mr Cox executed a holograph writing as follows:—“In case I may not have made alterations on my last will, I now declare it to be my will and wish, that my dear wife Margaret Cox be paid out of my funds the sum of £20,000 over and above the amount left her in other documents: That Robert Cox, my nephew, after succeeding to Gorgie Mills (subject to such occupation as my wife wishes during her life), shall be one of my residuary legatees, along with my dear wife, my nieces Isabella and Anne Cox, and Anne Ivory; but before the residuary amount be arrived at, my will is that my sister-in-law Mrs George Cox receive £ 2000, my brother Sir James Coxe £ 1000, and my sister Mrs Ivory £ 1000.” Certain other legacies were also bequeathed by the said holograph writing of 10th August 1872. At the date of this writing, Sir James Coxe and Mrs Ivory were the only surviving next of kin, the testator's brothers Robert Cox and Abram Cox having died without issue.

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It was maintained by Sir James Coxe and Mrs Ivory that the residuary personal estate was divisible, in terms of Mr Cox's testamentary writings, into seven parts, and that his residuary legatees were—. Sir James Coxe, his brother; Mrs Ivory, his sister; his widow, Mrs Cox; his nephew, Mr Robert Cox; and his nieces, Miss Isabella Cox, Mrs Chiene, and Miss Ivory. It was further maintained by them and Mrs Cox and Miss Ivory, that, as Mr Robert Cox had succeeded to the estate of Gorgie Mills as his uncle's heir-at-law, he was entitled, in terms of the holograph codicil of 7th November 1859, only to one-half of the share of the residue of the personal estate which he would otherwise have taken, and that the other half was divisible amongst the remaining residuary legatees in proportion to the sums otherwise falling to them.

On the other hand, it was maintained by the parties of the second and third part that the residuary personal estate was divisible, in terms of the holograph writing of 10th August 1872, into five parts, and that the residuary legatees were—the testator's widow Mrs Cox; his nephew Mr Robert Cox; and his nieces Miss Isabella Cox, Mrs Chiene, and Miss Ivory, and that the said writing operated an implied revocation of the previous bequest of residue under which the first parties claimed.

It was separately maintained by the parties of the second part, that in the event of its being held that Sir James Coxe and Mrs Ivory were entitled to shares of the residue under the holograph will of 24th December 1850, they were also entitled to shares of the residue in virtue of the said holograph will and as representing or coming in place of their brother Mr George Cox, in addition to the shares which they take individually under the holograph writing of 10th August 1872.

The questions submitted for the opinion of the Court were—“(1) Whether, under the testamentary writings of the late Mr John Cox, the said Sir James Coxe, Mrs Ivory, Mrs Cox, Mr Robert Cox, Miss Isabella Cox, Mrs Chiene, and Miss Ivory, are entitled to the residue of his personal estate? or (2) Whether, under the said testamentary writings, the said Mrs Cox, Mr Robert Cox, Miss Isabella Cox, Mrs Chiene, and Miss Ivory, are entitled to the said residue? (3) In the event of the first of these questions being answered in the affirmative,— What share of the residue is each of the said Sir James Coxe, Mrs Ivory, Mrs Cox, Mr Robert Cox, Miss Isabella Cox, Mrs Chiene, and Miss Ivory, entitled respectively to take? (4) In the event of the second question being answered in the affirmative,— What share of the residue is each of the said Mrs Cox, Mr Robert Cox, Miss Isabella Cox, Mrs Chiene, and Miss Ivory, respectively entitled to take?

At advising—