Dr Joshua M'Kenzie v. Legatees of Mrs Elizabeth Holte
Date: 2 February 1781 Case No. No 15.
A lady conveyed to a person, for behoof of his son, a sum which, in case of the son's death, was to devolve to the children of three families equally. This legatee having died, it was found that the sum must be divided among the children of the three families in capita, and not among the families collectively; that children born after the testator's death, but before the legatee's death, had right to a share; that the issue of those children who died before the legatee, were entitled to their parent's share; but that the heirs of those who died, without issue before the legatee's death, had no claim.
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Mrs Elizabeth Holte, by her last settlement, conveyed to Dr M'Kenzie her whole funds, in trust, for behoof of his children; “but, in case of the death of James M'Kenzie (one of them), she appointed the sum of L. 700 to be paid and divided by her said trustee, equally among the children of Janet M'Kenzie, and the children of Anne M'Kenzie, and the children of Anne Monro.”
James M'Kenzie having died, the legacy became due to the persons above-mentioned. Some difficulty, however, occurred in the mode of distributing it.
Of the children of the different families, one was not born till after the death of the testatrix, and several others who had survived the testatrix were predeceased at the time of James M'Kenzie's death, and one of these had left issue.
Doubts, therefore, arose concerning the following points; 1mo, Whether the division prescribed by the settlement should be made in capita, or in stirpes; 2do, Whether the child born after the testatrix's death was entitled to a share; and 3tio, Whether the issue or next of kin of such of the children as survived the testatrix, but died before James M'Kenzie, had also a right to a portion.
In order to obtain, for the direction of his conduct, the judgment of the Court upon the different claims resulting from these particulars, the trustee called all the parties interested into Court, by a process of multiplepoinding, when appearance was made for a considerable number of them.
Some of the Judges, in reference to the first point, were of opinion, that the mode of expression used by the testatrix, in the above quoted clause of the deed, especially in the repeated insertion of the particle ‘and,’ seemed to indicate an idea of a division between the several families collectively, and not among the children of them all, as mere individuals.
The judgment of the Court, however, was as follows:
“Find that the sum of L. 700, bequeathed by Mrs Elizabeth Holte, in the event of the death of James M'Kenzie, to the children of Janet and Anne M'Kenzie, and Anne Monro, falls to be divided amongst the said children equally in capita; and that each of the said children who existed at the death of the said James M'Kenzie, though born after the death of the testatrix, has right to an equal share thereof: And find that the issue of such of the said children as shed before the said James M'Kenzie, have right to their parents shares of said legacy; but that the nearest in kin of the children who died without issue before James M'Kenzie, have no right to any part thereof.”
Reporter, Lord Gardenston.Act. J. M'Kenzie.Alt. Elphinstone and J. M'Kenzie, jun.Clerk, Menzies.
Fac. Col. No 27. p. 49.
