M'Lean v. M'Lean

Subject_1 Crofter's Power of Bequeathing his Right to his Holding Subject_2 Limitations on that Power Subject_3 Crofters Holdings (Scotland) Act 1886 (49 and 50 Vict. c.29), sec.16. Facts: Under the 16th section of the Crofters Holdings Act 1886 a crofter may … bequeath his right to his holding to one person, being a member of the same family; that is to say, his wife or any person who failing nearer heirs would succeed to him in case of intestacy. …

A crofter who had sons and daughters living, bequeathed his right to his holding to a brother's daughter. His eldest son as heir-at-law maintained that the bequest was null and void on the ground that the legatee did not possess the necessary statutory qualifications.

By deed of settlement dated 1st October 1890 the late Niel M'Lean, crofter, Cornaig-beg, Tiree, who died 14th November 1890, bequeathed his right to his holding to his Page: 699 ↓

It was pleaded in defence—“(1) No title to sue. (2) The bequest founded on is null and void, in respect that the female pursuer is not a member of the same family as the deceased Niel M'Lean, and that nearer heirs have not failed. (3) The female pursuer does not possess the qualification of a legatee required by section 16 of the ‘Crofters Holdings (Scotland) Act 1886,’ and the bequest to her is null and void. (4) The defender being the eldest lawful son and nearest lawful heir of the deceased Niel M'Lean, is entitled to retain possession of the said croft.”

The Sheriff — Substitute ( Maclachlan ) found that the said Mrs Flora M'Lean did not possess the qualification of a legatee, required by section 16 of the Crofters Holdings (Scotland) Act 1886, and that said request was insufficient to exclude the claim of the defender Malcolm M'Lean as eldest son and heir to the deceased, to the said holding, and therefore assoilzied the defenders.