Murray's Judicial Factor v. Melrose and Others [1910] ScotLR 778 (01 July 1910)

Murray's Judicial Factor v. Melrose and Others [1910] ScotLR 778 (01 July 1910)

'Nearest of kin according to law' refers to those who would have succeeded as heirs in mobilibus at common law before the 1855 Act, i.e., the nearest degree of kin without representation; the addition of 'according to law' does not extend the class to include those entitled by representation under the Act.

Citation
[1910] ScotLR 778
Parties
First Party: David Todd, judicial factor on the trust estate of the deceased Thomas Murray; Second Party: Mrs Helen Murray or Melrose; Third Parties: David Murray, Glenfalloch, Pukeran, New Zealand, and others (four nephews and a niece of the testator, and the husband of the niece as her administrator-in-law); Fourth Parties: Agnes Robb and others (two nephews and four nieces of the wife of the testator, the husband of one of the said nieces, and the representatives of two other nephews of the wife); Fifth Parties: Thomas Brown and another (a grandnephew and a grandniece of the wife of the testator); Sixth Parties: Mrs Minnie Brown or Sharp and her husband as her administrator-in-law
Jurisdiction
Scotland
Judgment Date
01 July 1910
Procedural Posture
Special Case Stated for Opinion and Judgment / Judgment
Outcome
First question of law answered in the affirmative; second question answered in the negative.
Legal Topics
Construction of Testamentary Documents, Interpretation of 'nearest of Kin According to Law', Intestate Moveable Succession (scotland) Act 1855
Succession Trusts and Estates Construction of Testamentary Documents Interpretation of 'nearest of Kin According to Law' Intestate Moveable Succession (scotland) Act 1855

Case Brief

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Parties

David Todd, judicial factor on the trust estate of the deceased Thomas Murray

First Party

Mrs Helen Murray or Melrose

Second Party

David Murray, Glenfalloch, Pukeran, New Zealand, and others (four nephews and a niece of the testator, and the husband of the niece as her administrator-in-law)

Third Parties

Agnes Robb and others (two nephews and four nieces of the wife of the testator, the husband of one of the said nieces, and the representatives of two other nephews of the wife)

Fourth Parties

Thomas Brown and another (a grandnephew and a grandniece of the wife of the testator)

Fifth Parties

Mrs Minnie Brown or Sharp and her husband as her administrator-in-law

Sixth Parties

Procedural Posture

Special Case Stated for Opinion and Judgment / Judgment

Legal Issues

  1. 1 Whether 'nearest of kin according to law' in the will refers to those entitled under the Intestate Moveable Succession (Scotland) Act 1855 or to those who would have succeeded at common law before the Act
  2. 2 Whether the expressions confer a right to participate in the succession by representation upon the issue of those next-of-kin who predeceased the testator

Ratio Decidendi

'Nearest of kin according to law' refers to those who would have succeeded as heirs in mobilibus at common law before the 1855 Act, i.e., the nearest degree of kin without representation; the addition of 'according to law' does not extend the class to include those entitled by representation under the Act.

Court Disposition

First question of law answered in the affirmative; second question answered in the negative.

Orders

  • The expressions 'nearest of kin according to law' and 'nearest in kin ... according to law' confer a right of succession only upon those who as at the death of Mr Murray were the surviving next-of-kin of Mr and Mrs Murray respectively.
  • The said expressions do not confer a right to participate in the succession by representation upon the issue of those next-of-kin of Mr and Mrs Murray respectively who predeceased Mr Murray.