Scottish Court of Session Decisions

The Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55) enacts—Section 3—“Where a testator has not appointed any person to act as his executor, or failing any person so appointed … any general disponee or universal legatory or residuary legatee

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appointed by such testator, shall be held to be his executor-nominate and entitled to confirmation in that character.”

Mrs Mary Helen Bruce or Reid, widow of Charles William Reid, Lockerbie, pursuer, presented an application in the Sheriff Court at Dumfries for confirmation in her favour as executrix-nominate of her sister the deceased Jeanie Hosea Bruce or Dobie. A similar application was presented by Thomas Dobie, Lockerbie, pursuer, the husband of the deceased Mrs Dobie. These applications were presented in virtue of a holograph will, dated 12th June 1917, in the following terms:—“ Muir head,

Lockerbie, 12/6/17.

All I possess I leave to my husband Thomas Dobie, and after him to my sister Mary Helen Reid, King's Arms Hotel, Lockerbie, and her heirs.

(Sgd.) Jeanie Hosea Dobie.”

The pursuer Mrs Reid maintained that the will conferred a liferent on Thomas Dobie and constituted the pursuer residuary legatee of the deceased subject to the liferent of her husband.

The pursuer Thomas Dobie maintained that under the will he was entitled in fee to the whole of the deceased's estate, and as general disponee was accordingly executor-nominate in terms of the Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55), sec. 3.

The Sheriff-Substitute ( Campion) conjoined the applications, and on 24th February 1921 repelled the plea-in-law for the pursuer Mrs Reid and refused the crave of her application; further authorised the Clerk of Court to issue confirmation in favour of the pursuer Thomas Dobie as executor-nominate qua general disponee of the late Mrs Dobie in virtue of her holograph will dated 12th June 1917.

Note.—“… I am of opinion that what was intended by the testator was that in the event of the institute her husband not being alive at the time of her death, to her sister as conditional-institute the succession should open. Anyway I am of opinion that is the effect of the will which was executed in June 1917. To sustain the case as contended for by the agent for the pursuer Mrs Reid would practically imply the setting up of a trust, which does not seem to have been contemplated by the testator. The law on this question is very fully considered in the case of Bell's Executor, 24 R. 1120, and the numerous cases' there referred to.”

The pursuer Mrs Reid appealed to the Court of Session, and argued—The words “after him” in the holograph will implied a succession of interests, and therefore inferred a liferent in Thomas Dobie. A substitution in moveables was not to be presumed without express words— Crumpton's Judicial Factor v. Barnardo's Homes, 1917 S.C. 713, and per Lord President Dunedin at p. 719, 54 S.L.R. 596; Bell's Executor v. Borthwick, 1897, 24 R. 1120, 34 S.L.R. 838.

Argued for the respondent—The words “after him” meant “on his death.” To construe the words as a liferent was to invert the order of preference. The testatrix meant her husband to get the capital, and there was no reason why the words should not be construed as a substitution—M'Laren on Wills and Succession, vol. i, p. 575, sec. 1039; O'Reilly v. Baroness Sempill, 1855, 2 Macq 288, per Lord St Leonards, p. 293; Young's Trustees v. Young, 1899, 7 S.L.T. 266, per Lord Kyllachy.