Macdonald v Macdonald
| Jurisdiction | England & Wales |
| Judge | Lord Tomlin,Lord Thankerton,. |
| Judgment Date | 28 June 1932 |
| Judgment citation (vLex) | [1932] UKHL J0628-4 |
| Date | 28 June 1932 |
| Court | House of Lords |
| Docket Number | No. 7. |
[1932] UKHL J0628-4
House of Lords
Lord Tomlin.
Lord Warrington of Clyffe.
Lord Thankerton.
Lord Macmillan.
Lord Wright.
After hearing Counsel as well on Monday the 18th day of April last, as on Thursday the 12th, and Friday the 13th, days of May last, upon the Petition and Appeal of Miss Margaret Florence Croom Macdonald, formerly residing at Strathearn College, Strathearn Road, Edinburgh, and now at Dunscroft, Lasswade, Midlothian, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 11th of June 1931, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Mrs. Annie Amy Morrison or Macdonald lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 11th day of June 1931, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby dismissed this House: And it is further Ordered, That the Appellant do pay or cause to be paid to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
In this case a domiciled Scotsman died on the 23rd May, 1911, and his estate included lands in each of the Provinces of British Columbia, Manitoba and Saskatchewan in the Dominion of Canada, and also a mortgage of land in Canada. The deceased was survived by a widow, a son and a daughter.
The Appellant is the daughter of the deceased and was 15 years old at her father's death. The Respondent is the widow of the deceased and executrix nominate under his holograph will which was dated the 27th June, 1898, and was recorded in the Sheriff Court Books of the Commissariot of Aberdeen on the 13th July, 1911.
The Respondent was confirmed executrix nominate to the deceased conform to confirmation in her favour granted by the Sheriff of Aberdeen on the 15th July, 1911.
By his will the deceased bequeathed to the Respondent as his universal legatee the whole means and estate of every description of which he died possessed, but under the burden of her maintaining suitable to their stations in life the children of the marriage until each of them was able to maintain himself or herself.
On the 17th September, 1930, the Appellant raised an action against the Respondent of Count Reckoning and Payment claiming her share of legitim out of the estate of the deceased.
In condescendence IV after referring to the Canadian land as being possessed by the deceased at his death the Appellant averred with reference to such land as follows:—
"Such estate, according to the law of the Provinces British Columbia, Manitoba, and Saskatchewan, in which Provinces the said estate was situated, vests in the owner's personal representatives, and is dealt with and distributed among them as personal estate to which, as such personal representatives, they are beneficially entitled."
Upon this statement of the law of the said Provinces Appellant maintained that the value of the land in the said Provinces fell to be added to the deceased's moveable estate in estimating the fund from which legitim was payable, and she asked for a proof of her averments of the said foreign law.
The Respondent, on the other hand, averred on record as follows:—
"The Pursuer's averments regarding the law of the Provinces of British Columbia, Manitoba, and Saskatchewan are irrelevant. In any event, by the law of those provinces, the distinction between real and personal estate is recognised. Land in the said provinces is real estate and its owner can devise it by will. The devolution of real and personal property upon intestacy is now the same, but the character of the property ( qua real or personal) as in the hands of the intestate remains unaltered. Further, upon his death, the whole property of the deceased vests in his personal representatives or administrators merely for administrative purposes."
The record also contained reference to the mortgage on Canadian land, but it was conceded by the respondent that this must be taken into account in estimating the legitim fund.
After a debate on Procedure Roll, the Lord Ordinary (Lord Murray), before answer allowed a proof in regard to the law of British Columbia, Manitoba, and Saskatchewan.
"As regards the law of Canada, accordingly, I do not feel able, without further information as to its provisions and their effect, to deal with the question of relevancy on the record as it now stands, and I shall accordingly, before answer, allow a proof in regard to the law of Canada but limited to the matter of the landed estate."
Upon a Reclaiming Note taken by the Respondent against the judgment of the Lord Ordinary, the Second Division by a majority (the Lord Justice Clerk dissenting) recalled the Interlocutor of the Lord Ordinary and sustained the second Plea in Law of the Respondent, that the Appellant's averments with regard to the law of British Columbia, Manitoba, and Saskatchewan were irrelevant, and should not be remitted to probation.
"The pursuer does not aver that land is moveable estate by the law of Canada. Such an averment would probably, if made, be properly treated as self-contradictory. It is a well recognised principle of private international law, and is therefore part of the law of Scotland, that succession to land, and indeed to all subjects regarded as immoveable in the country where they are situated, is determined by the law of that country. The pursuer does not allege that by the law of Canada she would be entitled to any part of Canadian landed estate, or that the owner of it would not be entitled to dispose of it by will as he might see fit. I think the pursuer's contention proceeds upon a failure to recognise the fundamental proposition that the succession to Canadian land is governed by Canadian law."
Lord Ormidale concurred with Lord Hunter.
The Lord Justice Clerk after referring to the case of the Trustees of the Marquis of Breadalbane, 15 Scots Jurist, p. 389 and other cases in which on questions of jus relictae or legitim leaseholds and mortgages or bonds abroad forming part of the estate of a deceased domiciled Scotsman had been held to be proper to be brought into account concluded his opinion with these words:—
"Inasmuch then as the pursuer in this case has distinctly averred that the money invested by her father in Canadian land goes, as a matter of succession, in accordance with the law of Canada, to his personal representatives, I am of opinion, in consonance with the decisions which I have cited, that if these averments are proved, the estate in question is subject to the pursuer's claim of legitim. I think, therefore, that the pursuer's averments of Canadian law are relevant to the issue, and that the Lord Ordinary's decision is correct."
From the judgment of the Second Division the appellant apealed to your Lordships' House.
When the matter was opened your Lordships took the view that it was not proper that your Lordships should be asked to determine the matter upon a hypothetical statement of Canadian law which might or might not be accurate.
An adjournment was therefore given to enable Counsel to consider whether they could agree a minute setting out the relevant provisions of the Canadian law.
Ultimately such a minute was agreed, the parties renouncing any further probation.
Upon this footing the matter proceeded and was debated before your Lordships.
The effect of the relevant Canadian law as appearing from agreed minute may I think be summarised in the following way.
In each of the three provinces English law has been made applicable, in British Columbia in 1858, in Manitoba in 1864, and in Saskatchewan in 1870, and as so applied remains applicable except so far as varied by the statutory enactments of the respective provinces.
The statutory enactments in force at the death of the deceased in the several provinces were to the following effect:—
(1) In British Columbia the Court is empowered in the case of a person dying intestate as to his real estate to manage and sell such real estate through an official administrator or the personal representative of the intestate, the proceeds of any sale being held in trust for the persons entitled under the intestate by descent. Full testamentary power of disposition is vested in owners of real estate and upon death intestate real estate descends subject to a share to any surviving widow or widower in the following order, ( a) to lineal descendants and those claiming by or under them per stirpes, ( b) to the father, ( c) to the mother and ( d) to certain collateral relatives. Widow's dower is extended to land to which the husband dies...
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