JAMES and MARGARET NORRIS v ALEXANDER NORRIS & Ors (Court of Session)

The Lord Ordinary (25th June 1839) found, ‘that the whole nephews and nieces of the testator, whether related to him in that degree on the father or on the mother's side, or by the full-blood or the half-blood, are entitled to claim a share of the residue under the trust-settlement libelled on; therefore prefers the whole claimants pari passu to the fund in medio, and decerns; finds both parties entitled to payment of their expenses out of the said fund, and remits the accounts thereof, when lodged, to the Auditor, to tax and report.’

Note .—‘The question raised here appears to be singular in its occurrence; and the Lord Ordinary is not ashamed to own that the conclusion to which he has come, on a deliberate consideration of the authorities, is different from the impression which he had at the debate, when the question was first argued before him.

Lord Medwyn .—I am entirely of the same opinion. If we cannot find out the intention of the party, then we are driven to take the rule of intestate succession; but when the intention can be found out, we must give effect to it. I think the word ‘whole’ decisive of the question, as it could not have been used without a view to include all the nephews and nieces of the half as well as the full blood.

The Court accordingly adhered , and allowed the additional expenses to be paid out of the fund.

Lord Ordinary, Cuninghame. Act. Dean of Fac. (Hope,) Penney. Alt. G. G. Bell, Russell. John Forrester, W. S. and Simon Campbell, S. S. C. Agents. F. Clerk.