M'Wiggan's Trustees v. M'Wiggan [1922] ScotLR 214 (25 February 1922)

M'Wiggan's Trustees v. M'Wiggan [1922] ScotLR 214 (25 February 1922)

The mortgage, being created and renewed under statutory authority which expressly declares it to be moveable or personal estate and not heritable, is moveable property for all purposes, including succession and jus relictæ. The statutory declaration overrides the default rule under the Act of 1661, and the widow is entitled to claim jus relictæ in respect of the mortgage.

Citation
[1922] ScotLR 214
Parties
Pursuers and Real Raisers: Thomas M'Wiggan junior and others (Trustees of the late Thomas M'Wiggan); Defender and Reclaimer (widow): Mrs Isabella Johnston or Nairn or M'Wiggan; Claimant: Graham M'Wiggan; Claimant: George Kinsey Stewart
Jurisdiction
Scotland
Judgment Date
25 February 1922
Procedural Posture
Action of Multiplepoinding / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
Appeal allowed (interlocutor altered); mortgage held to be moveable estate; widow entitled to jus relictæ in respect of the mortgage.
Legal Topics
Jus Relictæ, Heritable and Moveable Property, Interpretation of Statutes, Private Acts, Testamentary Rights
Succession Family Law Jus Relictæ Heritable and Moveable Property Interpretation of Statutes Private Acts Testamentary Rights

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Parties

Thomas M'Wiggan junior and others (Trustees of the late Thomas M'Wiggan)

Pursuers and Real Raisers

Mrs Isabella Johnston or Nairn or M'Wiggan

Defender and Reclaimer (widow)

Graham M'Wiggan

Claimant

George Kinsey Stewart

Claimant

Procedural Posture

Action of Multiplepoinding / Inner House, First Division, Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether a mortgage declared by private Act to be moveable or personal estate is heritable or moveable quoad jus relictæ
  2. 2 Whether the widow is entitled to jus relictæ in respect of the mortgage

Ratio Decidendi

The mortgage, being created and renewed under statutory authority which expressly declares it to be moveable or personal estate and not heritable, is moveable property for all purposes, including succession and jus relictæ. The statutory declaration overrides the default rule under the Act of 1661, and the widow is entitled to claim jus relictæ in respect of the mortgage.

Court Disposition

Appeal allowed (interlocutor altered); mortgage held to be moveable estate; widow entitled to jus relictæ in respect of the mortgage.

Orders

  • Alter Lord Ordinary's interlocutor by substituting 'moveable' for 'heritable' and deleting 'not' in head (2) thereof.
  • Quoad ultra adhere to the interlocutor.