Lady Essex Ker, and Lady Mary Ker v. John Wauchope, Esq. Writer to the Signet; the Rev. Charles Baillie; Sir William Scott, of Ancrunr, Baronet; and Sir Henry Hay M'Dougall, Baronet

Factual and Procedural Background

The decedent, “The Duke,” executed three relevant instruments:

• 4 October 1790: A deed conveying his unentailed real estate and personalty to himself in liferent, then to the Appellants (“Ladies Ker”) and successive substitutes.
• 5 November 1803: A trust-disposition appointing two trustees (one of whom, the Respondent “Trustee W,” ultimately acted) and again conveying the same property for the purposes set out in future instructions.
• 19 March 1804: While gravely ill, the Duke directed the trustees to sell the unentailed lands (including a house in The City) and to invest the residue; the dividends were to be paid to the Appellants for life, with capital ultimately passing to the residuary legatees (“the Respondent Legatees”).

The Duke died the same day. Because the 1804 deed was executed in articulo mortis, the Appellants (as heirs-at-law and next of kin) sued in the Court of Session and obtained reduction of that deed in so far as it affected heritage; the House of Lords affirmed that reduction.

Years later, Trustee W raised an action of multiple-poinding to determine competing claims to the personal estate still in his hands. The Appellants claimed a life-interest in that residue, either (i) under the 1804 deed, or (ii) as next of kin if the deed failed. The Lord Ordinary held that, having successfully challenged the deed in respect of the land, the Appellants could not “approbate and reprobate” by taking benefits from the same instrument. The First Division adhered to that interlocutor. The present appeal lies to the House of Lords.

Legal Issues Presented

1. Whether the doctrine of approbate and reprobate (or election) disentitles the Appellants from taking a life-interest in the personal residue after they procured reduction of the same deed as regards land.
2. Whether the Duke’s domicile (alleged by the Appellants to be in England) affects the applicability of that doctrine to movable succession.
3. In the alternative, whether the Appellants can claim the life-interest ab intestato as next of kin once the testamentary gift fails.

Arguments of the Parties

Appellants’ Arguments

• The doctrine of approbate and reprobate is uncertain in principle; reduction of a disposition of heritage executed on death-bed does not bar acceptance of an independent gift of personalty in the same deed.
• Because the Duke was domiciled in England, English law—said not to recognise the doctrine—should govern the personal estate.
• If the life-interest cannot be taken under the deed, it devolves on them as next of kin, there being no other valid disposition of that interest.
• The interlocutors below are defective for failing to say to whom, if not the Appellants, the life-interest belongs.

Respondents’ Arguments

• A party cannot accept one part of a testamentary instrument while repudiating another; equity and Scottish authority alike enforce the maxim that inconsistent benefits and objections are prohibited.
• The Appellants must elect: either keep the real estate taken as heirs and renounce the life-interest, or relinquish the land and keep the life-interest. They cannot have both.
• The Duke’s domicile was in Scotland: he was a Scottish peer, his heritage lay in Scotland, and he resided there most of the year. English law is therefore irrelevant.
• If the Appellants are excluded, the life-interest passes immediately to the residuary legatees or accumulates for their benefit; in either case the Appellants have no title.

Table of Precedents Cited

Court’s Reasoning and Analysis

Judge [Chancellor], delivering the opinion of the House, reaffirmed the “fundamental principle” that “no person can accept and reject the same instrument.” The deed of 1804, though inept to pass heritage because executed on death-bed, remained a valid testamentary disposition of personalty. By successfully reducing the deed in part, the Appellants had clearly repudiated it; equity therefore barred them from taking any benefit it conferred.

The Chancellor dismissed the contention that English law governed the movables: domicile was Scottish, given the Duke’s title, predominant residence, and location of property. Consequently, Scottish doctrine of approbate and reprobate applied.

On the alternative claim ab intestato, the Court read the interlocutors below as having rejected that title also, though the language was “not quite correct.” Whether the Respondent legatees were entitled to immediate enjoyment of income, or only on the Appellants’ death, was reserved to the Court of Session. The House considered that point “very easy of solution” but, as it had not been decided below, remitted it.

Holding and Implications

HELD: The Appellants have no entitlement to a life-interest in the residue of the personal estate, either under the deed of 1804 or as next of kin; the interlocutors of the Court of Session are varied only to clarify this point and the cause is remitted for determination of the timing of the Respondent legatees’ entitlement to income.

Implications: The decision affirms, at the highest level, the Scottish doctrine that a party cannot “approbate and reprobate” a single instrument. No new principle was established, but the House of Lords’ endorsement strengthens the requirement of election in Scottish succession law.