Scottish Court of Session Decisions

At advising on 1st February 1935,—

LORD PRESIDENT (Clyde).—This petition for directions arises out of a settlement in the form of a holograph will by a testatrix who died at Inverness. The peculiarity of the will is that it devotes the testatrix's entire means to the building of a vault for the purpose of containing her own remains and those of two persons who had predeceased her by many years, and who were the only known kith and kin of the testatrix in the world. The amount of her estate has turned out to be some £3600; and under this settlement the whole of that sum is required to be devoted to the object which I have indicated.

There are three points I think upon which must turn the nature of the directions to be given to the judicial factor who is administering this estate.

In the first place, it was argued, or perhaps I should rather say it was suggested, that a direction in a will to spend the testator's money on the erection of a monument or memorial to himself was not a legitimate use of the testamenti factio; and on that head we were referred to a number of English authorities. I do not think those authorities afford us any guidance, because we must decide this question according to the law of Scotland; and I venture to repeat a remark (which I am afraid I have often made) that I cannot understand why the light which the law of our own country sheds on a question such as this should be deliberately hidden under a bushel of alien authority. I do not think that, in the law of Scotland, there is any doubt that a testamentary provision for the erection of a memorial or monument to the deceased testator is a perfectly

valid direction. It was precisely such a direction that was in question in 1713 in the case of Moncrief v. Monipenny, which is very fully reported in Morison, at page 3945. The way the question arose was this. The deceased's widow claimed her jus relictœ,and it was therefore necessary to make up an account of the jus relictœ fund. Any debt which could be shown to be payable by the dead's part, and not out of the full head of the executry, was so much gain for the jus relictœ fund, because that fund escaped contribution to it; whereas any debt which must be put against the full head of the executry diminished the amount of the jus relictœ fund. Among the expenses which became the subject of dispute were the deceased's funeral expenses and the expense of a monument put up to him in accordance with a provision in his settlement. The decision shows two things:—It shows first of all that, in certain circumstances, the expense of a monument may, according to the law of Scotland, be part of the funeral expenses; and it shows, secondly, that a provision in a testamentary settlement for the erection of a monument to the deceased is perfectly valid in the law of Scotland. With regard to the cost of the monument being a competent item in the deceased's funeral expenses, the decision turned entirely on the principle of the law of Rome (which is incorporated in our own jurisprudence), according to which funeral expenses are truly debts of the deceased. The view seems to be that an expense which immediately and necessarily follows upon his death is truly a debt of his own. The civil law put it this way:

"Qui propter funus aliquid impendit, cum defuncto contrahere creditur, non cum hœrede"

—Digest, Book XI., Tit. 7 (1). With regard to the testamentary direction for the erection of a monument, the decision was that the expense incurred on the monument, having been incurred under testamentary warrant—that is, by the executors in carrying out the will—was a debt which could not come off the full head of the executry, but must be paid out of the dead's part. The reporter adds:—

"The Lords … seemed in their reasoning to be of opinion that a monument erected to a defunct, whose character and fortune deserved one, [that is, in contrast to a case where it is done under testamentary warrant] would be considered as a part of the funeral expenses; and so come off the whole head. "

I think this is enough to dispose of the question whether a direction such as we find in this will is a legal and valid direction by the law of Scotland.

The second point on which I think our direction must turn is a matter that was argued in reference to the M'Caigcases and to Aitken v. Aitken's Trustees . Those cases are not easy to understand. There appears to be a considerable conflict of opinion among the members of the Court who delivered judgments. But they seem to lay down that, if a testator's directions reach a certain pitch of grotesqueness, of extravagance, of wastefulness, or of futility, then the testator's act may be regarded as going beyond the right of testamenti factio.There are, of course, unwise and even eccentric people who leave behind them unwise and eccentric wills. These are entitled to respect just as much as the wills of wise and sober-minded people. But the principle seems (if I

may state it in a popular way) to be that, just as a mad person cannot make any will, so a sane person cannot make a mad will. But does any consideration of this kind apply to this testatrix's project to erect a granite vault (even if it is to involve the expenditure of the whole £3600 of which her estate consists) ? Is it so grotesque, so extravagant, so wasteful, or so futile—in a word, so mad—that her direction must be declared a nullity ? One tries to place oneself in her position. She had not been married and had no children; and, owing to defect of status under which she suffered by no fault of her own, she was without a living relative in the world—the only two people with whom she could claim any kind of affinity or connexion (whom she knew as her uncle and aunt) having died many years before. As it appears to me, she, not unnaturally, sought such consolation as might be derived from the assurance that her remains were to rest alongside the remains of the only two people in the world with whom she had any relation. It is no doubt impossible to look at her plan for the realisation of such a project without a smile; and it is impossible not to be impressed with the grossly disproportionate character of the project. But I do not, for myself, see my way to say that it constitutes an abuse of testamentary power. I should add that I see nothing in the will to warrant the view (which was rather assumed in the argument) that this vault was to be erected somewhere outside a public cemetery, nor even anything to warrant the view that it must be outside the burying-ground at Tomnahurich. The will only refers to the acquisition of ground in Inverness, and that means prima facieground in a public cemetery. It might conceivably turn out that such ground could not be got; and in that case the will would fail, not for impossibility in law (if I may put it that way), but for impossibility in fact. The result is that I am not prepared to condemn the testator's direction to erect this little mausoleum for three—for herself and her only known relatives—as coming within the class of extravagant directions which, on the authority of the M'Caigcases, ought to be refused effect. It is admittedly not only competent, but common, for people to spend large sums of money in erecting a family mausoleum for those near and dear to them.

But now comes the third point on which our directions must turn; and this point seems to me to present a most formidable difficulty. It is an indispensable part of the testatrix's project that the mortal remains of the uncle and aunt should be exhumed from their present resting place in Tomnahurich and transported to, and deposited in, the mausoleum (wheresoever erected) which she planned. I know of no authority in the law of Scotland for the proposition that a stranger (because by no fault of her own she was a stranger) has any right whatever to dispose by testament of the mortal remains of other people. I think that is something quite unheard of. The law does recognise a certain right (not perhaps very well defined) on the part of persons who are not strangers but, on the contrary, relatives, and, particularly, near relatives, with reference to the mortal remains of their dead. It has been expressed sometimes

as a right approaching in character to a right of custody. Generally speaking, near relatives are entitled to repair a grave or a tomb, and they are entitled to have it tended or to tend it themselves, and so on; moreover, the law has recognised (in the case for instance of a father and a dead child) the father's right, subject of course to sanction and proper regulation, to exhume the remains of the child and have them removed, on grounds which are consistent with humane and pious feelings, to a different resting place. But there is no hint whatever in the law that a right of that kind can be exercised, either with or without regulation, in the case of a stranger who proposes to interfere with the bones of other people. Now, as I have said, that was an indispensable part of the testatrix's project. The project is not one which is capable of severance; it is not separable; and it follows that, if one of the indispensable parts of the project cannot be legally accomplished, then the whole project must go; and that is the conclusion at which I arrive.

The questions which are put in the petition might, I think, form the subject of directions to the following effect:—with regard to the first, the direction should be that the estate be administered as intestate estate; and, with regard to the last, that the factor should comply with the claim of the Crown as ultimus hœres to the estate. It will not be necessary to give any further direction.

I should add that the Solicitor-General told us that, if the judicial factor was directed to acknowledge the claim by the Crown, the Crown would do what they invariably do in such circumstances, and that is to acknowledge a claim, on the part of the administrator of the estate, to a reasonable sum to enable him to carry out in some form or other a memorial to the deceased. I understand the testatrix has been buried in Tomnahurich Cemetery. The judicial factor and the Crown should have little difficulty in coming to an agreement on the matter.

LORD BLACKBURN .—I have arrived at the same conclusion as your Lordship and for very much the same reasons. The testatrix in her holograph testament desires that two things should be done which, at first sight, might appear to be quite distinct but which, on second thoughts, appear to me to be inextricably mixed up. The first is the erection of a vault in which her own body is to be interred—the second that the bodies of her so-called uncle and aunt should be exhumed from their present grave and reinterred in the vault along with her own body.

Now, I am clearly of opinion that the wish to have the bodies of her uncle and aunt exhumed and interred elsewhere is one which cannot, and certainly ought not to, be given effect to, however laudable the wishes of the testatrix may have been to commemorate the many kindnesses which she had received from them during her lifetime. The fact remains that the uncle died forty years ago and was buried by his wife in Tomnahurich Cemetery, that his wife erected a tombstone to his memory, and was herself laid to rest there twenty years later, and, accordingly, for the last twenty years these two have lain in the same grave of their own choice in Tomnahurich Cemetery. The grave did not belong to the testatrix, for the reason that she had no relatives, and the bodies could be removed only by obtaining an order for exhumation. I cannot conceive that any authority would pronounce such an order on an application by the judicial factor to carry out this particular wish of the testatrix. Now, if that is impossible, then one has to consider whether the testatrix would have desired that her other wish, namely, the erection of the vault, should be carried out. So far as I can judge, the main purpose of the vault was to be a memorial to her uncle and aunt, and, if their bodies were not to be interred in it, much of the point of the memorial would disappear, and it is very doubtful whether the testatrix would have desired that her own remains should be laid in solitary grandeur in a memorial to her uncle and aunt. I cannot help feeling that, if she had realised that her desire as to the bodies of her uncle and aunt was incapable of fulfilment, she would have preferred to lie in the same grave with them, and that the idea of the memorial vault would have been abandoned.

For these reasons I readily agree with the result at which your Lordship has arrived, but I am bound to say I think that, if the suggested vault was to be erected within the Burgh of Inverness and not in the cemetery, as I understood to be maintained in the argument, I should have been prepared to hold that it was such a preposterous and extravagant scheme, and such a complete waste of money, as to entitle us to refuse to allow the estate of the testatrix to be thrown away in attempting to carry out that part of her scheme.

LORD MORISON .—I do not consider that this application raises the plain question whether a testatrix in the position of Miss MacKintosh is entitled by her will to direct her trustees to erect in her memory a granite vault, the cost of which will exhaust her whole estate. I reserve my opinion on that subject; but I think it right to repeat, as I said in the case of Thomson's Trustee, which is not reported, that I agree with the decisions in the cases of M'Caig and Aitken's Trustees. But, as the learned Solicitor-General pointed out, Miss MacKintosh's directions in regard to the vault are conditioned by other clauses in the settlement on this subject, and the validity of the bequest must be determined on a consideration of the whole of its terms and conditions. These terms are as follows, viz.—(1) "The bones of my uncle and aunt to be lifted out of their present grave … and placed in separate coffins in the same vault with my own remains" (2)A reliable person is "to see the vault properly built and the remains of Mr Macadam and Mrs Macadam and my own remains put properly into it"; and (3) ldquo;The stone and railing of the present grave in Tomnahurich Cemetery to be placed alongside of the vault.rdquo;

In my opinion the effect of these conditions makes the bequest void because it is incapable of lawful fulfilment. The first question which arises is, What is the position as regards the grave of Mr and Mrs Macadam ? I think the law on this subject was laid down by Lord

Justice-Clerk Boyle in the case of Mansfield, as follows:—

"It is clear as the sun at noonday, that by the common law no person can interfere with these graves, or do anything affecting the ground, that can tend in any way to injure the feelings of the connexions of those who are there interred. No one has a right to break up the ground of interment to the remotest periods of time. There the dust must for ever remain."

I think it is plain that the testatrix has directed the"reliable person" to commit a serious breach of the law. The offence of disinterring a dead body is a crime in its own nature punishable arbitrarily—see Soutar. It is said that the "reliable person" might apply to the Sheriff for a warrant to order the removal. In my opinion, the"reliable person" would have no title to present such an application; but, even if he had, it would have been quite incompetent for the Sheriff, upon his application, to grant a warrant for the removal of the Macadam remains to the private vault belonging to Miss MacKintosh's estate. A sheriff has powers under certain conditions set forth in the Burial Grounds (Scotland) Act, 1855, to order exhumation and re-interment. He has also, under certain other conditions, power to order the removal of remains from one burying-ground to another. But I am not aware of any power vested in the Sheriff, either by statute or by common law, which entitles him to order the transference of remains from a burying-ground, either to a public or to a private vault, at the instance of a third party who was not related to the deceased. It seems also quite plain that the"reliable person" could have no right to remove the stone and railing to the private vault. The stone and railing were not the property of Miss MacKintosh, and she had no right to deal with them in any way. I think, accordingly, that this bequest relating to the vault is incapable of lawful fulfilment, and that the directions suggested by your Lordship should be given to the petitioner.

LORD FLEMING .—In general a person is entitled to dispose of his means and estate during his lifetime as he thinks fit. Subject to the legal rights of husband or wife and children, our law gives to testators the right of disposal of their estates after their death by mortis causa disposition. But the recent cases of M'Caig v. Glasgow University, M'Caig's Trustees v. Kirk-Session of the United Free Church of Lismore, and Aitken's Trustees v. Aitken, seem to me to indicate that the right which a person has to dispose of his estate after his death is not so absolute as his right to dispose of it during his lifetime. The extent to which the right of disposal by mortis causa disposition is qualified raises difficult and delicate questions of law, upon which I think it is unnecessary to enter in this case. The bequest made by the testatrix necessarily involved the exhumation and removal of the remains of her uncle and aunt from their present burying place in the cemetery of Tomnahurich to the granite vault which she directed to be built. So far as appears, there is no reason for this being done except to gratify the deceased's desire to have a rather grandiose monument built to perpetuate her memory and

the memory of these relatives. The title of the judicial factor, however, as representing the deceased, to apply to the Court for warrant to exhume and re-inter the remains of her relatives is, to say the least, very doubtful. Further, for aught that can now be known, the directions of the testatrix may be directly contrary to the wishes of her relatives, and I do not think that any Court would be justified in granting the necessary warrant. I am, accordingly, of opinion that the fulfilment of the testatrix's directions is impossible, and that the bequest is invalid.