Ross v Martin

Where persons die in a common calamity, Scots law raises no presumption about the order of death. A claimant whose testamentary entitlement depends upon one person predeceasing another must prove that condition.

Clear testamentary language must receive its ordinary meaning. Words may be supplied only where the will itself reveals both an imperfectly expressed intention and what has been omitted. The presumption against intestacy cannot justify rewriting an unambiguous will.

Separate wills and estates must be construed and administered independently. Identical beneficiaries and provisions provide no legal basis for aggregating estates when nobody can establish an entitlement under either will.

Two sisters died from gas poisoning in a common calamity. Their brother had died earlier. Each sister's separate will left her estate to the brother and the other sister, or the survivor, with gifts to the appellants if both named beneficiaries had predeceased the testatrix. There was no evidence establishing which sister died first.

A judicial factor raised an action of multiplepoinding concerning both estates. The Lord President preferred the appellants to the fund, but the Second Division recalled that interlocutor and declared that both estates fell into intestacy. The appellants appealed, contending that “predeceasing” should receive an extended meaning, that the identical wills made the order of death immaterial, and that the presumption against intestacy favoured their claims.

1. Appeal dismissed unanimously. The Lord Chancellor, Earl Jowitt, Lord Morton of Henryton, Lord Reid and Lord Keith of Avonholm agreed that the Second Division had correctly declared that the estates fell into intestacy. The expenses of the appeal were to be paid from the fund.

2. Per the Lord Chancellor, Lord Morton and Lord Reid, Scots law raises no presumption that one of several persons who die in a common calamity survived another. A claimant must prove any order of death upon which the claimed entitlement depends. The appellants could not prove that Hannah predeceased Margery or that Margery predeceased Hannah. They therefore failed to establish the condition governing the legacies under either will.

3. Per the Lord Chancellor, Earl Jowitt, Lord Morton and Lord Reid, “predeceasing” had its ordinary and unambiguous meaning of dying during the testatrix's lifetime. Nothing in either will disclosed an intention to use it in another sense. A court may exceptionally supply words where the will itself reveals an imperfectly expressed intention and identifies the omitted words. It could not do so here, especially where the proposed construction would produce double pecuniary legacies and reduce the residue.

4. Per Lord Reid, the presumption against intestacy favours a reasonable construction producing testacy. It cannot carry construction beyond its proper limits or authorise amendment unless the testator's intention is manifest in the will. No reasonable alternative construction existed.

5. Per the Lord Chancellor, Lord Morton, Lord Reid and Lord Keith, the two wills and estates remained separate despite their identical terms and common administration. Each claim had to be established solely under the will governing the relevant estate. The appellants could not aggregate the estates or claim from an unidentified surviving sister's estate when they had proved no title under either will.

6. Lord Keith observed that the case suggested the desirability of a Scottish statutory presumption corresponding to section 184 of the Law of Property Act 1925. That English provision did not apply in Scotland.

1. House of Lords: Dismissed the appeal and affirmed the Second Division's declaration that both estates had fallen into intestacy.

2. Second Division of the Court of Session: On 20 November 1953 recalled, except as to expenses, the Lord President's interlocutor and declared that the estates had fallen into intestacy.

3. Outer House of the Court of Session: On 2 July 1953 the Lord President ranked and preferred the appellants to the fund comprising the two estates.