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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cunningham and Others v. Cunningham and Others [1891] ScotLR 28_266 (13 January 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0266.html Cite as: [1891] SLR 28_266, [1891] ScotLR 28_266 |
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Page: 266↓
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A testator directed the residue of his estate “to be equally divided amongst all my relatives, my sister Maria to get a half more than the others.” Held that the residue fell to be divided amongst the testator's heirs in mobilibus equally per stirpes, his sister getting one-half share more than that of each of the other stirpes
The late Arthur Cunningham, commission merchant, Girvan, died unmarried on 12th October 1889, leaving a last will and testament dated 18th February 1884, with codicil thereto dated 18th February 1887, both recorded on 9th December 1889. He nominated Dr John Cunningham and another his trustees and executors, and instructed them to pay certain legacies and by the codicil directed “the residue or remainder of my estate to be sold, and the proceeds to be equally divided amongst all my relatives, my sister Maria to get a half more than the others.”
The testator was survived by one sister — Mrs Maria Cunningham or M'Lean, and by the issue of five deceased brothers or sisters.
A multiplepoinding was raised by the trustees to have the rights of claimants under the will determined. These claimants were, inter alios, the said Mrs Maria Cunningham or M'Lean, who maintained that the residue fell to be divided amongst the testator's heirs in mobilibus per stirpes according to the provisions of the Moveable Succession Act, i.e., into six shares, but so that her share should be one-half more than each of the other shares, and the children of a deceased brother, who maintained that the residue fell to be divided amongst the testator's heirs in mobilibus per capita, his sister Maria receiving one-half share more than the other heirs.
The Lord Ordinary ( Kyllachy) pronounced as follows—“Finds …. that on a sound construction of the said settlement and codicil the said whole estate falls, after payment of the legacies … mentioned in the codicil, and under deduction of the expenses of realisation, management, and distribution, to be divided per stirpes among the testator's brothers and sisters and their descendants, in the same manner as if he had died intestate, but subject always to his sister Maria receiving one-half share more than the share falling to each of the other stirpes.” …
The claimants who desired division per capita reclaimed, and argued — No doubt the term “relatives” meant heirs in mobilibus— Williamson v. Gardiner, November 17, 1865, 4 Macph. 66, but according to the codicil the residue was to be divided “equally” amongst them all, whereas the Lord Ordinary gave unequal shares even to persons in the same degree of kinship to the testator. The proper course was to find out who were the relatives, and then divide the residue equally amongst them as individuals forming one class, i.e., per capita, giving Mrs M'Lean a half share more than the others. That was the method of division recognised in the analogous case of Hogg v. Bruce, July 8, 1887, 14 R. 887.
Argued for respondent—“Equally” was not used in Williamson's case, and was not conclusive of the matter. There might be equality either per stirpes or per capita — Home's Trustees v. Ramsays, &c., December 11, 1884, 12 R. 314; Allan v. Flint, June 15, 1886, 13 R. 975. The Moveable Succession Act of 1855, under which the reclaimers succeeded here, provided for division per stirpes. The Lord Ordinary's interlocutor was right.
At advising—
Page: 267↓
There is considerable difficulty in finding grounds in the words of the codicil for either construction, but I have come to the conclusion that the construction by the Lord Ordinary is the right one. I think that is the conclusion I should have arrived at had there been no other words than these—“amongst all my relatives.” The deceased was making a family settlement, in which he was acting as in loco parentis to the rest of his family, and it would, I think, be an unnatural construction to put upon the words he used a meaning which would cause the shares of his brothers and sisters who might survive him to have a proportion carried out of them whenever a brother or sister should die leaving a number of children. Such a reading would, I think, be strained and unnatural. But the special favour shown to “my sister Maria” that she was to get “a half more than the others,” seems to me to indicate very plainly that in speaking of his relatives he intended a division among the family in equal proportions to each family, and not in proportions to each individual, whether brother, sister, nephew, or niece, who might survive. I move your Lordships therefore to adhere to the interlocutor reclaimed against, and to remit the case back to the Lord Ordinary.
The Court adhered.
Counsel for the Reclaimers— Asher, Q.C.— Fleming. Agent— W. B. Rainnie, S.S.C.
Counsel for the Respondent— Vary Campbell— W. Campbell. Agent— Thomas Hart, L.A.
