Scottish Court of Session Decisions

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^* “The Lord Ordinary considers this as a questio voluntatis; and, owing to the great vagueness of the expression, not unattended with difficulty. On the one hand, it may seem improbable that the testator should have meant that the children of his predeceasing daughters should get nothing, while any of their aunts was alive; but, on the other hand, it is still more improbable that, in the event of their predeceasing without children, their shares of the liferent should accumulate in the hands of the trustees, for some uncertain distribution, on the death of the survivor, rather than accrue immediately to that survivor, to whose children (if she had any) the whole must ultimately come. But what decided the opinion of the Lord Ordinary was, the obvious impossibility of making any actual distribution of the fee till it was seen, at the death of the last surviving daughter, in what shares, and among how many grandchildren it was to be divided. If it had been to be divided among the grandchildren per familias, and not per capita, and if each set of children had been to get the same share of the fee, as their respective mothers had originally of the liferent, there would have been no difficulty in the construction. But the grandchildren are to get the whole fee equally among them, per capita; and how, therefore, can it be divided till it be seen how many are to share in the division? The claimant, Mrs Turner, has yet but one child, and her predeceasing sisters have left (between them) six or seven. But Mrs Turner may have seven more children yet before she dies; and how could the trustees divide the fee (or any part of it) among the eight existing children, when it may turn out that it should have been divided among fifteen?

“Another conclusive reason for holding that the liferent must have been meant to accrue to the surviving daughters, arises from the absurd consequences which would follow, on any other supposition, in a case which must be held to have been in contemplation, and is indeed expressly provided for, as to the destination of the fee. If none of the daughters leave any children, the fee of the testator's whole estate is directed to be made over to ‘his own heirs whatsoever;’ that is to say, to heirs more remote and less favoured than his immediate descendants. It seems strange enough that the testator should have confined his own daughters to a liferent, and reserved the fee to such persons; but it is utterly inconceivable that he should have meant to let two-thirds of the liferent also accumulate for their benefit, while his one surviving daughter was restrained to her original share of a third. The latter words of this clause plainly imply that the trustees were to keep the whole of the estate in their hands till it should be finally ascertained whether it was to go to grandchildren, or to remoter heirs; and are therefore conclusive against the competency of any present or earlier distribution.”