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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Birnie and Others v. Boyd and Another (Simpson's Trustees) [1892] ScotLR 30_259 (29 November 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0259.html Cite as: [1892] ScotLR 30_259, [1892] SLR 30_259 |
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Page: 259↓
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A testatrix—an only child—by testamentary deed dated 1860 left her whole estate, heritable and moveable, to her mother, and her heirs and assignees whomsoever, and died in 1891, predeceased by her mother. In an action of reduction of a subsequent testamentary deed at the instance of her heirs ab intestato, it was pleaded that the pursuers had no title to sue, not being the mother's heirs who were conditionally instituted by the prior deed, which would revive if the later one were reduced.
Held that as the testatrix was her mother's heir, and could not be supposed to have called herself to her own succession, this was a case not of conditional institution but of substitution, and that the plea of no title to sue fell to be repelled.
Miss Margaret Simpson, St Andrew's Street, Peterhead, upon 3rd April 1860 executed a mortis causa deed of settlement, whereby she disponed her whole estate, heritable and moveable, to her mother, and her heirs and assignees whomsoever. Upon 8th March 1875 she executed a trust-disposition and settlement, and three codicils in 1877, 1886, and 1890 respectively. She died on 3rd February 1891, predeceased by her mother.
John Birnie, 229 Barron Street, Woodside, Aberdeenshire, and three others, as heirs ab intestato of Miss Margaret Simpson, but who were not the heirs of her mother, brought an action against William Boyd, solicitor, Peterhead, and another of her testamentary trustees, for the purpose of having the deed of 1875 and relative codicils reduced.
The defenders pleaded—“(1) The pursuers have no title and no interest to sue.”
Upon 20th July 1892 the Lord Ordinary ( Stormonth Darling) repelled this plea.
The defenders reclaimed, and argued—If the deed of 1875 and relative codicils were reduced, the deed of 1860 would revive, and under it the pursuers could have no interest, not being the heirs of Mrs Simpson, who were thereby conditionally instituted— Halliburton, June 26, 1884, 11 R. 979; Cleland v. Allan, January 13, 1891, 18 R. 377. If it was argued that Miss Simpson (an only child) was her mother's heir, when her mother died, and in that way the pursuers had an interest, the answer was, that it would be extravagant to say a testator could call herself to her own succession. The mother's heir must in the circumstances be looked for at the date of the death of the testator. The destination, according to the intention of the testator, must be taken as if “to the heirs of my mother at the moment after my death”—M'Laren on Wills, i. 703, 705, and ii. 56; Pearson v. Corrie, June 28, 1825, 4 Sh. 120; Lord v. Colvin, July 15, 1865, 3 Macph. 1083; Ewart v. Cottom, December 6, 1870, 9 Macph. 232; Boyd v. Denny's Trustees, January 19, 1877, 9 R. 299 (Lord Young).
Argued for the respondents—1. This was a case of substitution. By the predecease of the mother the will of 1860 became inoperative, and therefore if the later deeds were reduced they would succeed as heirs ab intestato of Miss Simpson. 2. If a case of conditional institution, the heirs of the mother must be looked for at the date of the mother's death; her daughter was then her heir, and they were entitled to succeed to the daughter— Todd v. Mackenzie, July 18, 1874, 1 R. 1203.
At advising—
The pursuers are four of the heirs in mobilibus of Miss Simpson. The ground of reduction is that at the date of executing these several writings she was not of sound disponing mind.
The defenders, who are Miss Simpson's testamentary trustees, have stated the plea that the pursuers have no title to sue. That plea is founded on this, that Miss Simpson has left a mortis causa settlement, of date 3rd April 1860, which, if the writings under reduction were set aside, must receive effect, and by which they say the pursuers are excluded from Miss Simpson's succession, which in that event they say is destined to the heirs of her mother Mrs Simpson, who they allege are the children of three brothers of Mrs Simpson.
If the pursuers are excluded by this deed of April 1860, there is no question that they would have neither title nor interest to sue a reduction of the subsequent deeds. The question accordingly is, whether on a sound construction of this deed the pursuers are so excluded.
The facts which raise the question are very simple; Miss Simpson was an only child. Her mother predeceased her, and she was at her mother's death necessarily her mother's heir.
By the settlement of 1860, Miss Simpson for the love, favour, and affection which she bore to Mrs Margaret Christie or Simpson her mother, gave, granted, and disponed to and in favour of her and her heirs and assignees whomsoever, her whole estate, heritable and moveable, wherever situated.
Now I do not think it is doubtful that where there is in a settlement of moveable estate a gift to a person named, and his or her heirs, that such heirs are presumed to be conditionally instituted, in the event of
Page: 260↓
In this case accordingly, if the gift had been to a stranger and her heirs, I should not have doubted that the heirs would have taken as conditional institutes on the failure of the person named.
But the peculiarity of this case is that the person called as conditional institute in the event of Mrs Simpson's death is the testator herself.
It appears to me that it cannot be presumed that the testator intended to institute herself as heir to her own succession. I think, therefore, that the destination to the heirs of Mrs Simpson cannot be read as a conditional institution, but must be read as a substitution merely.
It follows therefore that the pursuers as heirs in mobilibus of Miss Simpson have a title to sue this action, and that the Lord Ordinary's interlocutor is right.
I wish only further to add, that even if the clause in question be read as a conditional institution of Mrs Simpson's heirs, the result would not in my opinion be different. Miss Simpson was unquestionably her mother's heir. Mrs Simpson's brother's children were only collaterally related, and were not her heirs. I fail to see when or how they became such heirs, so as to answer the description in the destination.
The
The Court adhered.
Counsel for the Pursuers and Respondents— M'Kechnie— Craigie. Agent— R. J. Gibson, S.S.C.
Counsel for the Defenders and Reclaimers— Comrie Thomson— Salvesen. Agent— Alex. Morison, S.S.C.