Copland's Executors v. Milne and Others [1908] ScotLR 314 (16 January 1908)

Copland's Executors v. Milne and Others [1908] ScotLR 314 (16 January 1908)

The term 'cousins' in the testator's will means only first cousins, as this is the primary and normal use, and nothing in the will or circumstances indicates a wider meaning. The will is habile to carry heritage, as the testator intended to dispose of his whole estate, heritable and moveable, and the direction to 'realise' the estate includes the heritable share.

Citation
[1908] ScotLR 314
Parties
First Parties (executors): Copland's Executors; Second Parties (beneficiaries): Eight full first cousins on mother's side; Third Parties (claimants): Thirteen first cousins once removed on mother's side; Fourth Parties (claimants): Six first cousins twice removed on mother's side; Fifth Party (heir Ab Intestato): Testator's heir-at-law
Jurisdiction
Scotland
Judgment Date
16 January 1908
Procedural Posture
Special Case (succession/testamentary Interpretation) / Judgment (inner House, Second Division)
Outcome
First and fifth questions answered in the affirmative; sixth in the negative. Only first cousins on the mother's side are entitled to share in the estate, including the heritable property.
Legal Topics
Interpretation of Testamentary Terms, Gift of Heritage, Meaning of 'cousins' in Wills, Testamentary Disposition of Heritable Property
Succession Wills and Probate Property Law Interpretation of Testamentary Terms Gift of Heritage Meaning of 'cousins' in Wills Testamentary Disposition of Heritable Property

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Parties

Copland's Executors

First Parties (executors)

Eight full first cousins on mother's side

Second Parties (beneficiaries)

Thirteen first cousins once removed on mother's side

Third Parties (claimants)

Six first cousins twice removed on mother's side

Fourth Parties (claimants)

Testator's heir-at-law

Fifth Party (heir Ab Intestato)

Procedural Posture

Special Case (succession/testamentary Interpretation) / Judgment (inner House, Second Division)

Legal Issues

  1. 1 Whether 'cousins' in the will means only first cousins or includes more remote relatives
  2. 2 Whether the will is habile to carry heritage (heritable property)

Ratio Decidendi

The term 'cousins' in the testator's will means only first cousins, as this is the primary and normal use, and nothing in the will or circumstances indicates a wider meaning. The will is habile to carry heritage, as the testator intended to dispose of his whole estate, heritable and moveable, and the direction to 'realise' the estate includes the heritable share.

Court Disposition

First and fifth questions answered in the affirmative; sixth in the negative. Only first cousins on the mother's side are entitled to share in the estate, including the heritable property.

Orders

  • Estate to be divided equally per capita among the eight full first cousins on the mother's side surviving the testator.
  • Heritable property forms part of the executry estate and is to be realised and divided accordingly.