A father left his whole effects to his only son, which he estimated at a certain sum, burdened with portions to his daughters, declaring, that if any of his children died, the portion of such should accresce to the survivers. The son was found comprehended in this provision, and that he dying, his portion accresced.
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John Graham, merchant in Dundee, having, by his first wife, three daughters, Elizabeth, Margaret, and Grizel, and by his second wife a son, David, and daughter Marjory, settled his affairs, by disponing his whole effects to David; providing that he should be bound to pay his debts, and to each of his sisters 5000 merks Scots:
“And failing any of the said children by death, that the portion or portions of the deceasing child or children were to be equally divided amongst the surviving children of both marriages; providing such child or children died before their marriages or majority:” “Also providing, that in case his moveable estate, exclusive of his plenishing, should fall short of the sum of 32,000 merks Scots money, to which he valued the same, and that by the insolvency of any of the debtors, specially or generally before mentioned, then, and in that event, his daughters and son were to suffer a proportional share of any loss, by the insolvency of any debtors, and that effeiring to their respective designed interests in his moveable estate.”
And named David his executor and universal legatar.
David and Marjory died soon after their father; and Elizabeth was married to Patrick Carnegy of Lour, to whom she disponed all effects “which fell and accresced to her by the death of her father or brother,” and died.
Patrick Carnegy claimed an equal share of David's succession with the two surviving sisters as disponed to him by his wife, to whom it belonged, in virtue of the clause in their father's will, whereby the portion of a deceasing child accresced to the survivers.
Pleaded for the defenders; David had no portion, but was an Universal successor; and no provision being made concerning his succession, it must go to his legal representatives, which they only are, as their sister Elizabeth made up no titles in her lifetime; and it is only the portions of the daughters that are appointed to accresce, on their death, to the survivers.
Pleaded for the pursuer; The testator's intention was to give all his children portions; and, excepting that his son's was made larger than the rest, to preserve an equality amongst them, by making the portion of the deceased accresce to the survivers. The son's portion was to be 12,000 merks; and, in case of deficiency, the rest were to suffer a proportional loss with him; and the portion of the ‘child’ deceasing was to accresce to the surviving ‘children’, in which enunciation the son was comprehended, consequently also under the term ‘child,’ whose provision was to accresce.
The Lords, 2d November, found, that the portion of the son did accresce to the surviving children, ipso jure, without any titles being made up thereto; and therefore found, that the pursuer had right to the third part of what belonged to the son, in right of his wife. And this day, on bill and answers, adhered.
Reporter, Elchies.Act. Lockhart et Ferguson.Alt. R. Craigie & R. Dundas.Clerk, Gibson.
D. Falconer, v. 1. No 107. p. 122.
