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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macnab v. Waddell and Others [1894] ScotLR 31_679 (30 May 1894)
URL: http://www.bailii.org/scot/cases/ScotCS/1894/31SLR0679.html
Cite as: [1894] SLR 31_679, [1894] ScotLR 31_679

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SCOTTISH_SLR_Court_of_Session

Page: 679↓

Court of Session Inner House First Division.

Wednesday, May 30. 1894.

[ Lord Low, Ordinary.

31 SLR 679

Macnab

v.

Waddell and Others.

Subject_1Process
Subject_2Multiplepoinding
Subject_3Competency
Subject_4Double Distress.
Facts:

In an action of multiplepoinding brought to determine alleged competing claims to a trust-estate the real raiser averred that he was entitled to one-half of the trust-estate, and that the same half was also claimed by another party.

Held that the action was incompetent in respect that it dealt with the whole trust-estate as the fund in medio, and that there was no averment of competing claims as to one-half thereof.

Headnote:

Peter Waddell raised an action of multiplepoinding in name of Mrs Catherine Macnab, widow of Peter Macnab, and sole surviving trustee under the antenuptial contract of marriage entered into between her and the said Peter Macnab, against himself, the said Peter Waddell, Mrs Catherine Macnab, as an individual, John Macnab, and certain other parties who were next-of-kin of the deceased Peter Macnab.

The real raiser Peter Waddell averred that by the said contract of marriage the deceased Peter Macnab had conveyed certain estate to the trustees therein named, that the trustees were directed, failing issue of the marriage, and in event (which happened) of Peter Macnab being the predeceaser of the spouses, to make over that estate in two equal shares, one to Peter Macnab's widow for her absolute use, and the other to any person whom Peter Macnab might appoint by any writing under his hand, and failing such appointment to his next-of-kin; that Peter Macnab had left a holograph testamentary settlement, whereby, in exercise of the power of appointment given him by the marriage contract, he had left half of the said trust property contributed by him to the real raiser; that he (the real raiser) claimed that half in virtue of the provisions of the marriage contract and the holograph will, but that Mrs Catherine Macnab would not pay it over to him, as it was also claimed by virtue of an inter vivos assignation from Peter Macnab.

The nominal raiser Mrs Macnab pleaded that the action was incompetent in respect that ex facie of the summons there was no double distress.

On 8th March 1894 the Lord Ordinary ( Low) having heard counsel on the closed record on the competency of the action, repelled the defences and sustained the competency.

The nominal raiser reclaimed.

At advising—

 Judgment:

Lord President—Lord Adam has pointed out what seems to me to be an unanswerable objection to the competency of this multiplepoinding, and this appears on the face of the Lord Ordinary's opinion. The only double distress alleged to exist consists of competing claims, not to the fund in medio, but to one-half of the fund in medio. As regards the other half there is no dispute whatever. The real raiser seems to have assumed that if he could show the existence of a competition for any part of the estate this was enough to support the competency of a multiplepoinding, throwing the whole estate into Court as the fund in medio. This view cannot be supported, and its adoption would be highly inconvenient. If we were to sustain this multiplepoinding, the necessary and probably the intended result is that the administration of the whole marriage-contract estate is taken out of the hands of the marriage-contract trustee. For this there is no valid reason. It is the duty of the trustee to divide the estate. A dispute such as we have here, as to who is entitled to this particular share of the estate, might be settled by an action of multiplepoinding for the distribution of the one-half which is the subject of dispute. The present action is in my opinion incompetent.

Lord Adam—Peter Macnab and the defender and nominal raiser Mrs Catherine Macnab entered into an antenuptial marriage-contract, by which Mr Macnab conveyed his whole estate to trustees, of whom the nominal raiser is the sole survivor. In the event (which has happened) of the husband being the predeceaser of the spouses, and of there being no issue of the marriage, one-half of the estate was to go to the widow for her absolute use. There is no question as to that portion of the estate. The other half of the estate was destined to any person whom Peter Macnab might appoint, whom failing to his next-of-kin. As regards this half of the estate there is double distress. A claim to it is lodged by Peter Waddell, who is the heir under a will left by Macnab, and it is also claimed by John Macnab, a brother of Peter Macnab. If the fund in medio had been limited to the latter half of the estate, I should have agreed with the Lord Ordinary in thinking that there was double distress, but the fund is not limited to that half of the estate, but comprises the whole estate. It is, however, the duty of the marriage-contract trustee to administer the estate, and having done so, to pay over the estate to the person in right of it.

It appears to me that because two persons may have a claim to one-half of the estate, that affords no ground for throwing the whole estate into Court, the effect of such a course being to oust the trustee from her right to administer the estate. I do not think that that course is competent, and I therefore concur with your Lordship.

Lord M'Laren and Lord Kinnear concurred.

The Court recalled the interlocutor of the

Page: 680↓

Lord Ordinary and dismissed the action as incompetent.

 Counsel:

Counsel for the Nominal Raiser— H. Johnston— Chree. Agents— Morton, Smart, & Macdonald, W.S.

Counsel for the Real Raiser— C. S. Dickson— Abel. Agents— Gill & Pringle, W.S.

 1894

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