26 November 1969
The first question put to us in the case is whether the third party is entitled to a one-third share in the residue of the testator's estate. The answer to that question depends primarily upon the meaning to be given to the words in the residue clause, which I have quoted, "jointly with the issue who may survive me of such of my children as may have predeceased." If "my children" means "my said children," that is, the two named children, who are the second parties, then the clause would clearly exclude the third party from participation in the residue. But I am unable so to construe the residue clause. If that had been what the testator had intended to provide, it would have been very easy to have said so. But in place of doing this he has made what he describes as a joint gift to two named children and to the issue of such of his children as may have predeceased him. The words "my children" are not confined to the named persons in the immediately preceding part of the clause. The third group, therefore, to whom this bequest was made would cover the third party, who was, in fact, the issue of a child who had, in fact, predeceased him.
I am confirmed in this conclusion by the consideration that the words used are not "issue of children who may predecease me," a phrase which might apply only to the issue of children who died between the date of the deed and the death of the testator. The words used are "the issue…of such of my children as may have predeceased," a phrase wide enough to cover the issue of children who predeceased him either before or after the execution of the settlement. If so, it would be apt to apply to the third party to this case.
It was sought by the second parties to counter this construction of the residue clause by reference to the final provision in it, whereby the issue were to take the share, original or accresced, which his, her or their parent would have taken if such parent had survived. It was argued that this provision was not consistent with the construction put by the third party on the earlier part of the clause. In my opinion, however, there is no inconsistency between that construction and the final provision in the residue clause. This provision in the clause is dealing with issue who are remoter than the testator's grandchildren, and it is designed to secure that no part of the residue should pass into intestacy. A meaning can, therefore, be given to the words of the second part of the clause which is consistent with the third party's construction of the first part, and which avoids doing the extreme violence to the language of the clause which, in my view, the argument for the second parties would involve.
It follows that, for the reasons I have given, I should answer the first question put to us in the affirmative, and, so far as the second question is concerned, it does not, in these circumstances, arise for decision in this case.
"the issue of such children taking (equally between or among them per stirpes if more than one) the share, original or accresced, which his, her or their parent would have taken if such parent had survived."
It was argued for the second parties that this passage meant that "such children" must be children alive at the date of the deed, since only "such children" could have taken a share, original or accresced. Accordingly, as the third party's father was dead at the date of the deed, the third party, as his issue, was not entitled to a share of residue. No doubt the passage would have that meaning in certain trust dispositions and settlements. But that interpretation, in the circumstances of the present case, would be flatly contradictory of the clear terms of the preceding passage directing division between Robert and Morag, jointly with the issue of children who may have predeceased. No such contradiction arises if "such of my children as may have predeceased" is construed as meaning "my children who are not in life at the date of my death," and if "the share, original or accresced, which his, her or their parent would have taken if such parent had survived" is held to mean the share which any child of the testator who has predeceased him leaving issue would have taken had that child survived the testator. I am of opinion that, in the light of the whole terms of the fourth purpose, this submission for the second parties is ill-founded.
It was also argued by the second parties that the terms of the fourth purpose should be construed adversely to the third party, because by the third purpose the testator had bequeathed a substantial legacy of £4000 to him. In my opinion, the circumstance that the testator conferred an additional benefit on the third party does not warrant the inference that he intended to exclude his grandchild from sharing in the residue under the fourth purpose. The contrary inference is also open, that he had a special favour for the third party. The argument does not come convincingly from the second parties, who themselves were bequeathed specific legacies as well as a share of residue.
I agree that question 1 should be answered in the affirmative, and that question 2 does not arise.
Counsel for the second parties contended that, as the testator, when he executed the trust disposition and settlement, knew that his son Ian was dead, he must have intended the words "of such of my children as may have predeceased" to refer only to such of his children as were alive at the time of the execution of the deed but who died before he did. This would exclude Ian's son. The wording of the second part of the clause reinforced this reading.
I am unable to accept this contention. Read as a whole the clause provides that on the testator's death the residue is to be divided among Robert Livingstone Aitken, Morag Macfarlane Aitken or Brown (his children) and John Montgomerie Aitken, who was "issue who survived the testator" and was "issue" of his son Ian, who had predeceased the testator.
We were also asked to take into consideration the fact that the third party was a beneficiary under purpose (third), under which he got a legacy of £4000. It was contended that that fact raised a presumption that the testator did not intend the grandson to take under the residue clause. I am quite unable to accept this view. I think the whole question turns upon the proper interpretation of the residue clause.
I would accordingly answer the first question in the affirmative. On this view I agree that it is unnecessary to answer the second.
Robert Livingstone Aitken appealed to the House of Lords, before which the case was heard on 14th October 1969.
At delivering judgment on 26th November 1969,—
The trust disposition and settlement provides by purpose (third) for a legacy of £4000 to the respondent. The appellant is left the testator's dwelling-house, and Mrs Brown is left the contents of the dwelling-house by the codicil.
By purpose (fourth) the trust disposition and settlement provides:
"As regards the whole residue of my means and estate I direct my trustees to divide the same equally between my children the said Robert Livingstone Aitken and Morag Macfarlane Aitken or Brown jointly with the issue who may survive me of such of my children as may have predeceased, the issue of such children taking (equally between or among them per stirpes if more than one) the share, original or accresced, which his, her or their parent would have taken if such parent had survived."
The question to be decided is whether the division of the residue is to be bipartite, between the appellant and Mrs Brown, or tripartite, between the respondent, Mrs Brown and the appellant. The First Division of the Court of Session have answered the question in the latter sense and, in my opinion, they were right.
The clause is ineptly framed, with a direction to divide the residue "equally" between two named persons and then "jointly" with the issue of predeceasers. If the provision had stopped after the joint provision at the word "predeceased," there could be no doubt that the issue of a predeceaser would take, and that, as the respondent fell within that category, he would be entitled to a third share of the residue. But the appellant argues that, having regard to the concluding words of purpose (fourth), and in particular to the words "the share…which his, her or their parent would have taken if such parent had survived," the respondent is excluded. His parent, Ian, having predeceased the settlement in 1941, could never have taken. Where the words of gift are plain, as they are in the opening provision of purpose (fourth), then these must predominate. To do otherwise would possibly defeat the testator's intention. The second part of purpose (fourth) merely defines the share which the issue of predeceasers are to take. Moreover, content can be given to the concluding words by reference to the position which might arise in regard to remoter descendants.
I am satisfied with the unanimous judgment of the First Division, and I would dismiss the appeal.
The testator had had five children, two sons who died unmarried before the date of the trust disposition and settlement in 1961, the appellant Robert Livingstone Aitken, his sister Morag MacFarlane Aitken or Brown (who was a party in the Court below but who has not thought fit to appeal to this House), and one Ian Aitken, who died in 1941, leaving a son, the respondent John Montgomerie Aitken.
The trust disposition and settlement appointed the appellant and Morag Aitken or Brown to be trustees of his estate upon trust for the following purposes: first, upon the usual trust for payment of his debts and so on; second, to convey his dwelling-house and contents to the appellant; third, to provide a pecuniary legacy of £4000 to his grandson, the respondent; and he then directed:
"(Fourth) As regards the whole residue of my means and estate I direct my trustees to divide the same equally between my children the said Robert Livingstone Aitken and Morag Macfarlane Aitken or Brown jointly with the issue who may survive me of such of my children as may have predeceased, the issue of such children taking (equally between or among them per stirpes if more than one) the share, original or accresced, which his, her or their parent would have taken if such parent had survived."
The testator's codicil altered the terms of his will in matters immaterial to his fourth purpose.
The residue of the estate subject to duties and debts amounted to about £118,000.
The sole issue before your Lordships is whether upon a sound construction of the words which the testator has used in his fourth purpose the respondent is entitled to a one-third share of residue or whether residue is divisible equally between the appellant and his sister Morag to the exclusion of the respondent. This question came before the First Division upon a special case, and their Lordships were unanimously of opinion that the respondent was entitled to a one-third share.
My Lords, the testator has used some inelegant words in his fourth purpose. He has confused the concept of equal shares with joint ownership; it is fortunate that the parties have agreed that, if the respondent is entitled to share at all, he takes a third share. It is no doubt extraordinary that, having just made a substantial pecuniary gift to the respondent by name, the testator did not name him as one of the persons to share in residue. But the task of your Lordships is clear; it is to give effect to the intentions of the testator by construing his language, however imperfect or inelegant it may be, robustly and in a commonsense way, trying, so far as is possible, to mould his language so as to do as little violence to it as is possible.
Your Lordships have been referred to some authorities, but no authority can be of any assistance in construing the words of this will. Their meaning can only be ascertained by trying to give some coherent meaning to the words the testator has used.
Like their Lordships of the First Division, I can feel little if any doubt as to the intentions of the testator. The beneficiaries of residue are in the first place the appellant and Morag in equal shares jointly with the issue surviving the testator of children of his who have predeceased him. Pausing there, this is clearly a gift to a composite body consisting of two named persons and a class of issue of children who have predeceased him, however inelegantly phrased, so that the appellant, Morag and the respondent are plainly all beneficiaries and, as I have already pointed out, their respective shares are not in doubt.
Had the relevant words stopped there, counsel for the appellant recognised his difficulty in trying to exclude the respondent, but the will continued by using familiar phraseology making a gift to issue in the case of a class gift where the original taker has not survived the testator. So, the argument runs, you find a substitution in favour of issue, but, as the original taker, the respondent's father, was never in the original class, so his issue cannot take. Therefore the gift is confined to the named children of the testator and the respondent is excluded.
But this argument is based on a fallacy. There is no true original gift to a class in the first place, and so you cannot apply the rule sometimes applied that a gift to issue only applies to issue of those who were in the original class. The original gift was to a composite and inelegantly phrased body of persons. If you strictly applied the rule urged before your Lordships, you would do complete violence to the language of the testator by excluding from residue those comprehended in the expression "jointly with the issue who may survive me…" Such a construction, as Lord Guthrie said, would be flatly contradictory of the clear terms of the preceding passage.
The words of the gift to issue of a parent who does not survive can in fact be given a literal effect. They refer to issue of the named children if either had predeceased the testator and quantify and classify the issue who are to take of other children of the testator unnamed in the will. Thus, if the respondent had himself died leaving issue, the directions would have applied to them. Such issue would take equally per stirpes.
My Lords, I entirely agree with the reasoning of the Lords of the First Division and would dismiss the appeal.
Counsel for the respondent was disposed to agree that his costs of the appeal should come out of the estate, but Morag is not a party to this appeal and I can see no reason why her share should be diminished in any way. The ordinary rule is clear that, though the costs of all parties at first instance are paid out of the estate, for the litigation, is the result of the testator's blunder, yet an unsuccessful appellant must pay the costs of the appeal, and I would so order in this case.
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