Scottish Court of Session Decisions

This was an action of multiplepoinding and exoneration raised by Mr Niven, C.A., as judicial factor on the trust-estate of the deceased William Kirkland, innkeeper at Kinross. The question involved had reference to the construction of Mr Kirkland's deed of settlement and certain codicils thereto.

By the deed of settlement, dated in 1825, it was provided that after the death of the truster's widow the estate should be held by the trustees for the purpose of paying over the yearly produce thereof to his only child Mary Kirkland or Stocks, and in the event of her death that the trustees should denude and make over the whole estate to her issue, if only one child, on his or her attaining the age of twenty-five, and if more than one, on the youngest attaining majority or being married. In the event of the truster's daughter dying without lawful issue, or her only child (James Stocks) dying before attaining twenty-five years without issue, the truster directed his trustees to sell the whole estate and pay over the residue to his brothers and sisters in equal shares. By a codicil dated in 1831 the truster so far altered his settlement as to declare that in the event of his daughter having no other child than the said James Stocks, he should, even though he shall have attained the age of twenty-five years of age, have no more than a liferent interest in the estate, unless he married and had lawful issue, on the occurrence of both of which events the trustees were to denude in his favour.

The truster died in 1836. His widow died in 1842. His only child, Mary Kirkland or Stocks, died in 1863, leaving only one child, James Stocks, who now claimed the whole fund in medio. He is a widower, but has never had issue, and therefore is excluded from the fee of the estate by the terms of the codicil. He maintains, however, that as the conditions on which the truster provided that his estate should be divided among his brothers and sisters can now never occur, he being now forty years of age he is entitled to the fee as his grandfather's heir-at-law and sole next-of-kin, the succession having by force of circumstances become intestacy. The judicial factor, with concurrence of the representatives of the brothers and sisters of the truster, opposed this claim, and contended that James Stocks was only entitled to a liferent, and had no right to the fee, in respect one of the conditions on which he was to succeed thereto, namely, his having lawful issue, had not been fulfilled. He also pleaded that in the event of the liferent lapsing by the death of James Stocks without having lawful issue, the residue fell to be divided among the brothers and sisters of their descendants.

The Lord Ordinary (Ormidale) held that James Stocks was entitled under the codicil to no more than a liferent. He also indicated an opinion that on Mr Stocks' death without issue the brothers and sisters would be entitled to succeed, but he held that it was premature to decide this matter as Mr Stocks might yet have issue. He thought any other view was inconsistent with the plain intention of the truster. Mr Stocks reclaimed; and the Court to-day unanimously altered Lord Ormidale's interlocutor.