Ross's Judicial Factor v Martin
| Jurisdiction | Scotland |
| Judgment Date | 20 November 1953 |
| Date | 20 November 1953 |
| Docket Number | No. 4. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
The Lord President.
SuccessionConstruction of testamentCasus improvisusTwo sisters dying in common calamityNo evidence that either sister survived the otherEach sister bequeathing whole estate to brother and sister equally and to survivorEach sister making identical bequests in event of brother and sister predeceasingBrother predeceasing sistersEvidencePresumption.
Two sisters died together in a common calamity, each leaving a formal will whereby she bequeathed her whole estate to her brother and sister equally and the survivor of them. Each provided, in the event of her brother and sister predeceasing her, for the appointment of the same person as trustee and executor, and each in addition made identical provision for the division of her estate in that event. Both wills were executed on the same day. There was no evidence that either sister survived the other; and the brother predeceased his sisters. The Lord President, sitting in the Outer House, having held that in the circumstances each estate fell to be divided in accordance with the provision made for the event of brother and sister predeceasing the testatrix,
Held (rev. his judgment) that, as it was impossible to say whether either sister predeceased or survived the other, both estates fell into intestacy.
Drummond's Judicial Factor v. H. M. Advocate, 1944 S. C. 298, followed.
Solicitor and ClientSolicitor's responsibilitiesSuccessionFraming of testamentRisk of client's death in common calamity.
Per the Lord Justice-Clerk:"Now that the motor car, the aeroplane and the bomb have increased the risk of common calamity, testators would be well advised to see that the language of their wills is sufficient to meet the possibility."
WILLIAM BISHOP, chartered accountant, as judicial factor on the estates of two unmarried sisters, Miss Margery Newton Ross and Miss Hannah Ross, who died, aged 79 and 74 years respectively, from gas poisoning in circumstances which provided no evidence to show whether either had survived the other or whether they had died simultaneously, brought an action of multiplepoinding and exoneration, calling as defenders the beneficiaries named in the sisters' respective wills, the heirs and representatives whomsoever and the next of kin, and the Lord Advocate, as representing the Crown as ultimus hoeres.
The two sisters left formal wills, both dated 9th July 1938, in almost identical terms, each bequeathing her whole estate to her brother and sister equally between them and the survivor of them, and appointing them and the survivor of them to be her executors or executor. In the event of both brother and sister predeceasing the testatrix, each sister appointed John Melville Clark, W.S., to be her trustee and executor, and made provision for a large number of pecuniary legacies and residuary bequests, chiefly charitable. Under both wills the beneficiaries were the same, the amounts of there legacies were the same, and their shares of residue were in the same proportionsthe only difference being that one sister died possessed of a slightly larger estate than the other.
In response to the usual orders for claims, claims were lodged only by the Lord Advocate and by the beneficiaries named in the two settlements, Miss Mary Martin and others.
The Lord Advocate averred, inter alia:(Cond. 2) "This claimant believes and avers that the said Misses Margery Newton Ross and Hannah Ross died on 1st February 1950 under circumstances in which there is no evidence or presumption to show that either survived the other; that accordingly their testamentary deeds are ineffectual and their estates fall into intestacy; and that, as they had no known heirs to their estates upon intestacy, these have become bona vacantia and fall to the Crown as ultimus hoeres"
The beneficiaries averred, inter alia:(Cond. 3) "On a proper construction of said trust-dispositions and settlements and in the events which have happened, these claimants contend that they are each entitled to be paid the legacies or shares of residue provided for them by each of said deeds. A schedule lodged herewith sets out the amount or share claimed by each of them "
Subsequently Albert Sinclair and others came forward, claiming to be heirs in intestacy, and were allowed to lodge claims which, like the Lord Advocate's, were based on the view that the sisters had died intestate.
On 2nd July 1953, after a Procedure Roll discussion, the Lord President (Cooper), sitting in the Outer House, ranked and preferred the named legatees in terms of their claim.
At advising on 20th November 1953,
LORD JUSTICE-CLERK (Thomson).This reclaiming motion arises in a multiplepoinding raised by the judicial factor appointed on the estates of two sisters, who resided together and who died by gas poisoning in a common calamity. Each was unmarried and left considerable estate. Each of the deceased left a trust-disposition and settlement, dated the same day, by which she bequeathed her whole estate to her brother and sister equally and the survivor of them. Each provided that, in the event of both brother and sister predeceasing her, John Melville Clark, W.S., should be appointed her trustee and executor, and certain bequests in the form of pecuniary legacies and division of residue were made. In each case the bequests were identical.
It is impossible not to be convinced that the ladies collaborated in making their wills. Nevertheless the wills are separate and independent; there is no element of mutuality, and no suggestion but that each sister remained entirely free to revoke or modify at any time her own will. One must consider each will separately.
I shall take the will of Margery as the basis of discussion. At the date of her death her brother was already dead. Hannah could succeed only if she qualified as the survivor of Margery. It is agreed that, as the two sisters perished in a common calamity, it is impossible to say which survived the other. No claim is put forward on the basis that Hannah survived her sister. Any such claim would appear to be excluded by the two cases of Drummond's Judicial FactorSC1 andMitchell's ExecutrixSC.2 These cases are binding on us. The effect of them is that there is no presumption as to survivorship in a common calamity, and that, as the question of which survived is one of fact, a claimant whose claim depends on proof of survivorship must prove survivance. It follows that, had the will contained no destination-over, intestacy must have followed. No amount of construction could have produced any other result.
The question for our decision under Margery's will is whether the same result necessarily follows in the case of the other bequests, which come into operation "in the event of Hannah Ross predeceasing me." It is very tempting to say that this is a condition which does not require literally to be complied with; that it is not a condition which enters into the essence of the bequests, but merely states the events on the failure of which the bequests are to come into being. If, viewing the scheme of the will, one asks "When was the gift to the legatees to become effective?" the answer is "When neither the brother nor the sister was in a position to take." I have tried hard,
but have failed to convince myself that I am entitled to take this view. The problem under Hannah's will is, of course, precisely the same and raises the same considerationsThe result of the interlocutor under review is that both sets of bequests are good; Margery's, because nobody is in a position to show that Hannah survived to take; and Hannah's, because nobody is in a position to show that Margery survived to take. This result cannot be reached if the words found in each will, descriptive of the event on which the bequests open, are literally read. It is impossible to say that either sister predeceased the other.
It is trite to say that the duty of the Court is to discover the intention of the testator. It is equally trite, but not so frequently remembered, that that intention must be discovered within the four corners of the...
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Ross's Judicial Factor v Martin
...8 H. L. Cas. 183, andDrummond's Judicial Factor v. H. M. Advocate, 1944 S. C. 298, applied. (In the Court of Session 20th November 1953—1954 S. C. 18.) William Bishop, chartered accountant, as judicial factor on the estates of two sisters, Miss Margery Newton Ross and Miss Hannah Ross, who ......