Adam (Colville's Factor) v. Nicoll and Others [1913] ScotLR 62 (21 November 1913)

Adam (Colville's Factor) v. Nicoll and Others [1913] ScotLR 62 (21 November 1913)

The proviso in section 1 of the Intestate Moveable Succession (Scotland) Act 1855, limiting representation among collaterals to brothers' and sisters' descendants, applies to section 2. The right to collate and claim a share of the moveable estate under section 2 is not available to an heir in heritage who is not within the class defined in section 1. The sections must be read together as a unified scheme, and the contrary interpretation in Jamieson v. Walker is overruled.

Citation
[1913] ScotLR 62
Parties
Pursuer and Real Raiser: A. Y. Adam (Colville's Factor); Defender, Claimant and Reclaimer: Mrs Annie Bruce Adam or Nicoll; Defenders, Claimants and Respondents: Robert Adam and Others (including Mrs Annie Adam or Lister, Mrs Elizabeth Adam or Butchart, Mrs Mary Adam or Stark, Mrs Jessie Adam or M'Leish, William Robertson Adam, Agnes Milne Adam)
Jurisdiction
Scotland
Judgment Date
21 November 1913
Procedural Posture
Action of Multiplepoinding and Exoneration / Appeal (reclaiming Motion) Before Inner House, First Division, Court of Session (seven Judges)
Outcome
Appeal allowed; interlocutor of Lord Ordinary recalled in part; Mrs Nicoll ranked and preferred to the whole moveable estate; Robert Adam entitled to the heritage only; claims of Robert Adam and his sisters to moveable estate denied.
Legal Topics
Intestate Succession, Collation, Representation Among Collaterals, Interpretation of Intestate Moveable Succession (scotland) Act 1855
Succession Law Trusts and Estates Intestate Succession Collation Representation Among Collaterals Interpretation of Intestate Moveable Succession (scotland) Act 1855

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Parties

A. Y. Adam (Colville's Factor)

Pursuer and Real Raiser

Mrs Annie Bruce Adam or Nicoll

Defender, Claimant and Reclaimer

Robert Adam and Others (including Mrs Annie Adam or Lister, Mrs Elizabeth Adam or Butchart, Mrs Mary Adam or Stark, Mrs Jessie Adam or M'Leish, William Robertson Adam, Agnes Milne Adam)

Defenders, Claimants and Respondents

Procedural Posture

Action of Multiplepoinding and Exoneration / Appeal (reclaiming Motion) Before Inner House, First Division, Court of Session (seven Judges)

Legal Issues

  1. 1 Does the proviso in section 1 of the Intestate Moveable Succession (Scotland) Act 1855, which limits representation among collaterals after brothers' and sisters' descendants, apply to section 2 of the Act?
  2. 2 Is an heir in heritage, not being among the next-of-kin or a descendant of a brother or sister of the intestate, entitled to collate and claim a share of the moveable estate under section 2?

Ratio Decidendi

The proviso in section 1 of the Intestate Moveable Succession (Scotland) Act 1855, limiting representation among collaterals to brothers' and sisters' descendants, applies to section 2. The right to collate and claim a share of the moveable estate under section 2 is not available to an heir in heritage who is not within the class defined in section 1. The sections must be read together as a unified scheme, and the contrary interpretation in Jamieson v. Walker is overruled.

Court Disposition

Appeal allowed; interlocutor of Lord Ordinary recalled in part; Mrs Nicoll ranked and preferred to the whole moveable estate; Robert Adam entitled to the heritage only; claims of Robert Adam and his sisters to moveable estate denied.

Orders

  • Recall findings entitling claimants to be ranked and preferred on the moveable estate.
  • Find Mrs Annie Bruce Adam or Nicoll entitled as sole next-of-kin to be ranked and preferred in terms of her claim.