Ross's Judicial Factor v Martin
| Jurisdiction | England & Wales |
| Judge | Lord Chancellor,Earl Jowitt,Lord Morton of Henryton,Lord Reid,Lord Keith of Avonholm |
| Judgment Date | 04 March 1955 |
| Judgment citation (vLex) | [1955] UKHL J0304-2 |
| Date | 04 March 1955 |
| Court | House of Lords |
| Docket Number | No. 3. |
[1955] UKHL J0304-2
House of Lords
Lord Chancellor
Earl Jowitt
Lord Morton of Henryton
Lord Reid
Lord Keith of Avonholm
After hearing Counsel, as well on Thursday the 13th, as on Monday the 17th, days of January last, upon the Petition and Appeal of Miss Mary Martin, 15 St. Leonard's Bank, Edinburgh; Miss Janet Whyte, Beulah Lodge, Horley. Surrey; Mrs. Margaret Burnett, sometime of 9 St. Mary's York, and now of Magdalen College School, Oxford; Mrs. Elizabeth Beveridge, sometime of Walter Grove, Kelso, and now of 34 Beechfield Avenue, Blackpool; Mrs. Kathleen Fleming, Lunelea, Rattray, Blairgowrie; Miss Beatrice E. Batty, 59 Merchiston Crescent, Edinburgh; Miss Alice Wallace, 45 Dreghorn Loan, Colinton, Edinburgh; Miss Mina Wallace, 45 Dreghorn Loan, Colinton, Edinburgh; Mrs. Nancy Richardson or Mackay, 19 Featherhall Crescent North, Edinburgh; Mrs. Jean Jones or Mann, 38 Angle Park Terrace, Edinburgh; Mrs. Jessie Tonnar, sometime of 13 Duke Street, Edinburgh, and now of care of Miss Reid at 78 Comiston Road, Edinburgh; Mrs. Pirrie 13 Craigend Cottages, Liberton; Mrs. Elizabeth Newton or Mitchell, 1 West Road, Cambridge; The Scottish Rights of Way Society Limited, 32 Rutland Square, Edinburgh; The National Trust for Scotland for Places of Historical Interest or Natural Beauty, 5 Charlotte Square, Edinburgh, 2; The Edinburgh Hospital and Dispensary for Women, 1A Whitehouse Loan, Edinburgh; The Royal Edinburgh Hospital for Sick Children, Sciennes Road, Edinburgh; The Edinburgh Medical Missionary Society, 29 Charlotte Square, Edinburgh; The Young Women's Christian Association of Scotland, 14 Melville Street, Edinburgh; The National Vigilance Association, Eastern Division, 37 Frederick Street, Edinburgh; The British Women's Temperance Association (Lothians and Borders District Union), 8 North Bank Street, Edinburgh; The National Bible Society of Scotland, 5 St. Andrew Square, Edinburgh; The John G. Paton Mission Fund, per Miss Macleod, The Orchard, Bowling, Glasgow; The Royal National Lifeboat Institution (Scottish Division), 45 Queen Street, Edinburgh; The Cancer Control Association for Edinburgh and South East Scotland, per Professor Wm. Annan, 22 Charlotte Square, Edinburgh; The Session and Office Bearers of Martyrs and St. John's United Free Church, Edinburgh, per Mr. John T. Hay, 39 Cambridge Gardens, Edinburgh; The Madras Christian College, 121 George Street, Edinburgh; The United Free Church of Scotland, 11 Newton Place, Glasgow; Edinburgh Royal Infirmary, Lauriston Place, Edinburgh; The Princess Margaret Rose Hospital for Crippled Children, Fairmilehead, Edinburgh, 10; and John Melville Clark, Writer to the Signet, 12 Hope Street, Edinburgh, 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 20th of November 1953, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Albert Sinclair, Miss Margaret Sinclair, James Miller, Noel Miller, Alexander Miller, Mrs. Josephine Miller or Lawrence, Mrs. Mary Miller or Keith, James Sinclair, Mrs. Gladys Sarah Jane Sinclair or Russell, Mrs. Annie Bremner Sinclair or Campbell, Mrs. Mary Sinclair or Macleod, John Sinclair, Hector Ross Sinclair, Mrs. Jane Sinclair or Williamson, and Mrs. Margaret Louisa Sinclair or Murray, 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 Her Majesty the Queen assembled, That the said Interlocutor of the 20th day of November 1953, in part 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 Costs of all parties incurred by them in respect of the said Appeal to this House, be taxed as between Party and Party, and be paid out of the fund in medio, 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 parties 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 Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
This is an appeal against an interlocutor dated 20th November, 1953, pronounced by the Second Division of the Court of Session recalling, except so far as it dealt with expenses, an interlocutor pronounced by the then Lord President dated 2nd July, 1953. The effect of the interlocutor of the Lord President was to give to the Appellants certain legacies under the wills of each of two sisters, and the effect of its recall was to allow the estates of the two sisters to fall into intestacy.
The Appellants are the sole surviving legatees under the Trust dispositions and settlements of two sisters, Miss Margery Newton Ross and Miss Hannah Ross who, at the respective ages of 79 and 74 met their death from gas poisoning in a common calamity on 1st February, 1950. Each of the two sisters left a Trust disposition and settlement dated 9th June. 1938. The two Trust dispositions and settlements were not only dated on the same day, but were witnessed by the same witnesses and mutatis mutandis they were in identical terms. They were, however, two separate and revocable testamentary deeds and were not a mutual will containing provisions of a contractual nature. By her will each sister bequeathed her whole estate to her other sister and her only brother equally and the survivor of them. Each provided that in the event of both her sister and brother predeceasing her John Melville Clark, Writer to the Signet, was to be appointed her Trustee and Executor for the purposes enumerated in her will. These purposes included the payment of certain bequests to the Appellants. The Appellants are the surviving legatees under the wills of each of the said sisters, each of whom bequeathed the same pecuniary legacies to the same legatees, and each of whom named the same residuary legatees for the same share of residue.
The sisters' only brother, Edward Burns Ross, died on 11th January, 1947, unmarried. Subsequent to that date, therefore, the surviving sister was to take the whole estate of the sister who died first assuming, as was the fact, that neither sister altered her will. Following upon the death of the two sisters in the common calamity, a Mr. Bishop was appointed Judicial Factor on the estates of both sisters. The Judicial Factor was advised that in the circumstances he would not be in safety in distributing the estates of the two sisters without judicial authority. He accordingly raised an action of multiplepoinding in which the estates of the two sisters formed the fund in medio. The Appellants lodged claim in the said action, as did the Lord Advocate representing the Crown as ultimus haeres. At the time the said action was raised no next-of-kin of the two sisters had been traced. Certain persons eventually came forward and lodged claims as the deceased's next-of-kin. They are the Respondents in this appeal and were the successful Appellants in the court below. The Lord Advocate petitioned to be allowed to withdraw from the case and was not present before your Lordships' House.
My Lords, there is only one portion of each will which is relevant and I quote that portion from the will of Miss Margery as follows:
"I, MISS MARGERY NEWTON ROSS, … do hereby Assign, Dispone, Devise, Legate and Bequeath to my brother, Edward Burns Ross, and my sister, Hannah Ross, … equally between them and the survivor of them, the whole means and estate, heritable and moveable, real and personal, wherever situated which shall belong to me, or over which I shall have the power of disposal at the time of my death; and I Nominate the said Edward Burns Ross and Hannah Ross and the survivor of them to be my Executors or Executor; but these presents are granted subject to the payment by my said executors of my lawful debts, deathbed and funeral charges, and any legacies I may leave by any writing under my hand, however informal the same may be: And in the event of both the said Edward Burns Ross and Hannah Ross predeceasing me I Nominate John Melville Clark, Writer to the Signet, Edinburgh, to be my trustee and executor, and I Assign, Dispone, Devise, Legate and Bequeath to the said John Melville Clark as Trustee under these presents the whole means and estate … which shall belong to me … in trust for the following purposes, videlicet:—"
Mr. M'Donald, who urged all possible arguments for the Appellants, made three broad points.
(1) The judgment of the Lord President should be restored on the ground that on a proper construction and on the evidence each sister validly bequeathed to his clients, because the words "in the event of both the said Edward Burns Ross and Hannah Ross predeceasing me" were equivalent to "in the event of survivor of my sister and my brother failing to take an "interest." The intention of both wills was that the Appellants should take in the event of the failure of the prior gift.
(2) The appeals should succeed because, having regard to the identical terms of the two wills, it is immaterial whether Miss Margery...
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