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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barstow (Maltman's Factor) v. Cook and Others [1874] ScotLR 11_363 (19 March 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0363.html Cite as: [1874] SLR 11_363, [1874] ScotLR 11_363 |
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Page: 363↓
(Ante, vol. iv. p. 207.)
A person died intestate, leaving heritable and other property. His only brother had not been heard of for twenty years; if alive, he would be in his 82d year, and all inquiry during many years had failed either to discover him or prove his death. Held that these facts were sufficient to justify an order on the judicial factor to divide the estate among the next of kin other than this brother.
This was an action of multiplepoinding and exoneration instituted in 1859 at the instance of Mr C. M. Barstow, C.A., judicial factor on the estate of the late William Maltman, of the East India Company's service, who died at Elie, in the county of Fife, in March 1854, leaving heritable and personal property to the value of £10,000 or thereby. Mr Maltman had several brothers and sisters, all of whom predeceased him with the exception of Gavin Maltman. Gavin Maltman was born in November 1792, and left this country in the year 1814. Inquiries which were set on foot elicited the fact that he had in the course of his life wandered over a considerable portion of the West Indian Islands and North America, and had last been heard of at Shediac, New Brunswick, in July 1854. Rumours of his death on several occasions reached this country, and in consequence of them a commission was twice sent to Canada by the Court to inquire into the truthfulness of these reports, but they turned out to be unfounded.
Application was now again made to the Court by the heirs-at-law and next of kin of William Maltman, seeking for an order upon the judicial factor to divide the estate among them.
At advising—
The other Judges concurred.
The Court pronounced the following interlocutor:—
“The Lords having resumed consideration of the reclaiming note and the claims of the parties, and having heard counsel thereon, Find that the parties held entitled to certain expenses by the interlocutors of twenty-eighth January eighteen hundred and sixty-five, seventh February eighteen hundred and sixty-five, fifth June eighteen hundred and sixty-nine, and twelfth January eighteen hundred and seventy-one, have agreed to pass from all claim for said expenses except as regards the sums of five guineas and four guineas mentioned in said interlocutor of twenty-eighth January eighteen hundred and sixty-five: Find that the funds in medio fall to be distributed and paid in accordance with the following scheme of division, that is to say (1) the claimant James Cook, Berwick-on-Tweed, shall receive one-half share pro indiviso of the heritable subjects, with entry as at the term of Martinmas 1873, together with one hundred and fifty pounds sterling as his proportional share of the rents, and the claimants Ann Barclay or Burnside and Margaret Barclay or Scott shall each receive one-fourth share pro indiviso of the heritable subjects, with entry as at the said term of Martinmas 1873, together with seventy-five pounds sterling as a proportional share of the rents; (2) The raiser Charles Murray Barstow, as raiser and as factor loco absentis to Gavin Maltman, shall be entitled to expenses to be paid out of the funds in medio; (3) David Curror, solicitor, Supreme Courts of Scotland, as agent disburser shall receive out of the funds in medio the sum of four hundred pounds sterling on account of the expenses incurred by the parties whose adjusted revised condescendence and claims
Page: 364↓
are Nos. 200 and 201 of process respectively; and (4) the remainder of the funds in medio shall be divided into nineteen equal parts or shares, of which one share shall be paid to the said claimant Ann Barclay or Burnside and her husband for his interest, one share shall be paid to the said claimant Margaret Barclay or Scott, one share shall be paid to the claimant Duncan M'Carter, Edinburgh, as executor dative of his father the deceased claimant Duncan M'Carter, Bathgate, one share shall be paid to the claimant George M'Carter, one share shall be paid to the claimant Elizabeth Watt or Dodds and her husband for his interest, one share shall be paid to the claimant Edward Cook otherwise called Edward Elliot Cook, as an individual, one share shall be paid to the claimant James Cook, sometime warehouseman London, one share shall be paid to the claimant Mary Cook or Fletcher, one share shall be paid to the claimant Ann Cook or Horner, one share shall be paid to the claimant Alexander Ireland, as assignee of the deceased claimant Margaret Cook or Kelly, one share shall be paid to the claimant Eleanor Cook or Worth and her husband for his interest, one share shall be paid to the claimant John Barrow as executor to his deceased wife Jane Cook or Milner or. Barrow, one share shall be paid to the said claimant James Cook, Berwick-on-Tweed, two shares shall be paid to the claimant Stephen Maxwell Cook, one share shall be paid to the claimant Isabella Cook or Taylor and her husband for his interest, one share shall be paid to the claimant Eliza Ann Cook or Wilson and her husband for his interest, and two shares shall be paid to the claimant James Cathie: and Find that, as regards the question of expenses reserved by the interlocutors of sixth March eighteen hundred and sixty-one and fourteenth March eighteen hundred and sixty-two, and also as regards the question of expenses referred to in the interlocutors of twentieth July eighteen hundred and sixty-five and twelfth February eighteen hundred and sixty-seven, and all other questions of expenses, no party shall be entitled to or liable in expenses except in so far as already paid out of the fund in medio as above provided for: Rank and prefer the parties above specified on and to the fund in medio in terms of the scheme of division foresaid: Grant warrant to and ordain the said Charles Murray Barstow to convey and make payment in terms of the said scheme of division: Quoad ultra repel the whole claims lodged in process, and decern.”
Counsel for Judicial Factor— Macdonald. Agents— M'Neill & Sime, W.S.
Counsel for Heirs-at-law and Next of Kin to William Maltman— Black, Gloag, and M'Kechnie. Agents— D. Curror, S.S.C.; Burn & Gloag, W.S.; and Thomas M'Laren, S.S.C.
