Scottish Court of Session Decisions

William Martin Griffith, a native of British Guiana, died upon 9th July 1903, leaving a will executed in British Guiana, and dated 11th August 1891. The will was in the following terms:—

“Last Will and Testament—Colony of British Guiana.

“In the name of God. Amen.—Be it known that I, William Martin Griffith, residing in the city of Georgetown, county of Demerara, and Colony above named, being about to leave the Colony, and in order to prevent any doubts or disputes arising after my demise as to the disposition of my effects in and out of the Colony, do make, publish, and declare this to be my last will and testament, hereby expressly revoking all former wills and codicils, and I now order as follows, viz.—

“ Firstly I request that all my funeral expenses and just and lawful debts be paid as soon after my demise as possible.

“ Secondly I will and bequeath to my brother John Henry Brathwaite, my sister Mary Rose Beete (born Lynch), and my unborn babe (mother Blanche Ezepha Chapman), all my effects, to be divided equally between the three as soon as possible after my demise.

“In the event of the first (my brother) dying, his portion must go to his present wife and her heirs.

“In the event of the second (my sister) dying, her portion must go to her children; and in the event of my unborn babe dying, its portion must go to its mother, above named.

“ Thirdly I nominate, constitute, and appoint John Henry Brath waite and M'Lean Ogle as executors, with power of assumption, substitution, and surrogation.”

Griffith, who was illegitimate, came to Scotland in 1891, and spent the last years of his life in Scotland. He was possessed of heritable property in Glasgow valued at £2000.

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William Gair Chrystal, chartered accountant, Glasgow, having upon the 26th August 1903 been appointed judicial factor on the deceased's estate, raised a multiplepoinding in which the fund in medio was the heritable property of the deceased in Glasgow and the rents thereof.

The Lord Advocate, representing the Crown as ultimus hæres, claimed the fund in medio, and averred—“The will of the deceased William Martin Griffith was not habile to dispose of, and did not dispose of, the deceased's heritage situated in Scotland. The succession to the deceased's Scottish heritage falls to be determined according to the law of Scotland, and the will of the deceased falls to be construed according to the law of Scotland, in the same way as if it had been a will executed in Scotland in Scottish form by a Scotsman. The said William Martin Griffith left no heir, and he died intestate quoad his Scottish heritage.”

The deceased's executors Brathwaite and and Ogle also claimed the fund in medio, and averred—“(3) The will of the said William Martin Griffith is effectual to carry heritage in Scotland. It is effectual to dispose of real estate in British Guiana, where it was made. The document falls to be construed according to the law of British Guiana. The said will purports to dispose of the testator's whole ‘effects in and out of the colony’ of British Guiana. According to the law of the said colony the term ‘effects’ includes the whole estate, whether real or personal, and wheresoever situated, belonging to the testator. By that law the will validly disposes of the whole estate, heritable and moveable, which belonged to the deceased. The averments of the other claimant, in so far as not coinciding herewith, are denied.”

Upon the 17th June 1904 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor repelling the executors' condescendence and claim, and ranking and preferring the Lord Advocate to the fund in medio.

Opinion.—… “The fund in medio consists of the heritable estate in Glasgow, together with the accruing rents, and the competition is between the executors under the will and the Grown as ultimus hæres, Mr Griffith having been illegitimate. The executors maintain that the will ought to be construed according to the law of British Guiana, and that by that law the term ‘effects’ includes the whole estate, whether real or personal and wheresoever situated, belonging to the testator. The Lord Advocate, on the other hand, maintains that the will falls to be. construed according to the law of Scotland, as the law which regulates all questions affecting the succession to the testator's Scottish heritage.

“Now, the question whether a foreign will was intended to pass and does pass heritable estate in Scotland is, primarily at all events, a question of Scots law. This depends not only on a well settled rule of international law but upon section 20 of the Titles to Land Act of 1868, by which it was for the first time made possible to settle the succession to heritable subjects in Scotland by testament; for the first requirement of any such testament is that it shall ‘purport to convey or bequeath’ Scottish lands. Similarly, in a later part of the section, which substitutes for the old words of style in a conveyance of Scottish lands such words as would be sufficient to confer upon an executor a right to moveables, it is provided that the words must be used ‘with reference to such lands.’ If this be a question to be determined by the law of Scotland there can be no doubt of the answer, for it has been twice decided— Pitcairn, 8 Macph. 604, and Edmond, 11 Macph. 348—that the word ‘effects’ is not sufficient to carry heritage.

“But then the executors maintain that the thing to be got at is the intention of a testator who made his will in a foreign country, and they offer to prove that by the law of that foreign country the term ‘effects’ would include the testator's whole estate of every description. They also point to the fact that the term ‘effects’ was followed by the words ‘in and out of the colony,’ which, they say, must have been intended to cover real estate, inasmuch as mobilia situm non habent I am not sure whether this argument is used as strengthening the likelihood that the law of British Guiana would pronounce the will as habile to carry heritage, or whether it is urged as a reason why even a Scottish court should declare it to have that effect. If it be used for the latter purpose, then I must decline to ascribe so important an effect to the words ‘in and out of the colony.’ While it may be true in a legal sense that personal estate has no locality, there is a popular and very real sense in which it has, and that is the sense in which the testator must be understood as having described his ‘effects’ as both in and out of the colony. I cannot imagine any testator who really wished to affect his real estate describing it in so obscure a fashion.

“ Studd v. Cook, 10 R. (H.L.) 53, was the only case on which the executors were able to found as at all supporting the strange proposition that a Scottish court is not to decide for itself the question whether Scottish land is carried by a foreign will, but is to resort to the courts of the country where the will was executed to determine that question, even although the words to be construed are simple English words and not terms of art. But Studd v. Cook, when properly examined, affords no countenance to such a proposition. The will under construction in that case purported to convey Scottish lands in express terms about which there could be no dubiety, and the only purpose for which English law was invoked was to interpret certain technical words of English conveyancing, in order that they might be translated into the nearest analogue afforded by the law of Scotland. That is all that Lord Watson really meant when he spoke (at p. 61) of the Legislature having intended that the intention of the testator should be ‘gathered from the whole context of the will interpreted by the rules of English law.’ Indeed, his Lordship treated the whole question as turning on the provisions

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of section 20 of the Titles to Land Act, and one of the curious results of the executor's argument would be that the construction of an Act relating to Scotland should be relegated to the courts of a foreign country. I quite admit that if this will had been expressed in a foreign language, or had used technical words unintelligible in Scotland, it would have been competent and necessary to resort to the lex loci actus for their interpretation. But there are no such words in this will. The primary question is whether it ‘purports to convey or bequeath lands’ in Scotland, and that is a question for the courts of Scotland, and for no other.

“I shall therefore sustain the claim of the Crown and repel the claim of the executors.”

The executors reclaimed, and argued—There should be a proof or an inquiry into the averment that by the law of British Guiana the will validly disposed of the deceased's whole estate, heritable and moveable. The Lord Ordinary had erred in confusing two questions—(1) whether the will carried Scottish heritage; and (2) whether it was intended to do so. The second question was to be decided by the testator's intention and by the law of British Guiana, that being the system of law which it was to be presumed the testator had in his mind— Hamlyn & Company v. Talisker Distillery, May 10, 1894, L.R. 1894, A.C. 202, 21 R. (H.L.) 21, 31 S.L.R. 642. That was necessary in order that the will might have the same meaning everywhere. The first question would still remain over for the decision of the Scottish courts. The intention of the testator was to be gathered through the law of the domicile, which here was the same as that of the place where the will was made, for where the lex domicilii and the lex loci rei sitæ differed in the meaning to be put on any term used, it was the former which ruled. And that was so although the language of the will in question was not technical—Storey's Conflict of Laws (8th ed.), pp. 663–5 and 671, secs. 479 a and 479 h; Burge's Commentaries, vol. ii, 857–8, vol. iv, 590–1; Philimore's International Law, 3rd ed. vol. iv, 711 and 712; Trotter v. Trotter, June 10, 1829, 3 W. & S. 407, at p. 414. This proposition was admitted if the term in question was in a foreign language; it was equally applicable if not— Di Sora v. Phillips, 1863, 10 Clark & Finelly H. of L. Cases, 624, at pp. 638–9. Inquiry was therefore necessary.

Argued for the Lord Advocate, claimant and respondent—The will must be interpreted by the law of Scotland—M'Laren, vol. i, pp. 31–32—and “effects” would not carry heritage in Scotland. It was said to have been the testator's intention to convey his heritage, but there was no expression of such intention and no words in the will applicable to heritage. The 1868 Act, section 20, had consequently no bearing, for while it abolished the necessity of using words of style it left it still necessary to use words to describe what was to be conveyed. There was nothing here to show that heritage was in the testator's mind, e.g., no power given to sell, and the bequest was to executors only, not to trustees— Grant v. Morren, February 22, 1893, 20 R. 404, 30 S.L.R. 447; Urquhart v. Dewar, June 13, 1879, 6 R. 1026, 16 S.L.R. 602; Campbell v. Campbell, November 30, 1887, 15 R. 103, 25 S.L.R. 97. Wills might be construed by means of the lex domicilii or lex actus, but the question whether heritage was carried was ruled by the lex sit us—Gillespie's Bar's Private International Law, 2nd ed., p. 830; Yeats v. Thomson, June 5, 1835, 1 S. & M.L. 795, at p. 837. The Court of the situs was entitled to construe for itself ordinary words— Studd v. Cook, May 8, 1883, 10 R. (H.L.) 53, 20 S.L.R. 566; Thomson's Trustees v. Alexander, December 18, 1857, 14 D. 217. The passage in Storey quoted by the reclaimers was much too widely stated and was not supported by the authorities cited, while in Trotter's case the law of the situs was adopted whenever heritage was dealt with.

At advising—