Scottish Court of Session Decisions

Lord Neaves—This case is one which it is impossible to decide with any feeling of satisfaction. It regards the construction of a will written and apparently framed by the testator himself, and which shows on the face of it that he uses many words and phrases with an utter ignorance of their meaning, and seems quite unable to find the proper words by which his true meaning can be expressed. We must endeavour, however, to give the deed some effect, and although we may not reconcile all its contradictions, we may do what seems to be enjoined by clear and unequivocal words, and deal with the obscurer parts of the deed upon the general principles applicable to such questions.

1. The leading provision in this deed is clear enough. The estate is to be held by the trustees for the truster's three daughters, equally in liferent, for their liferent use allenarly. These words restrict the daughters to a more liferent of their own shares respectively, and it would be impossible to give any of them a higher right in that share without doing violence to the express words of the will. both in their natural and in their technical meaning.

2. As to the fee of these shares— i. e., the beneficial fee—it is given after the decease of the daughters respectively to their heirs or assignees. Leaving out of view assignees at present, it is a question whether heirs here means “heirs of the body” or “heirs generally.” If each of the daughters left children, they would take the fee in either sense of the term;but if one or more of them died without children, the question would practically arise. In that case, it would follow that if heirs meant heirs of the body, there would be no collateral succession by one sister or her child to another, and thus the fee would be undisposed of. To avoid that result, it seems more natural to read heirs here as meaning heirs generally, though other parts of the deed may put a partial restriction on its operation.

3. The use of the term assignees is very perplexing: Strictly speaking, liferenters can have no assignees as to the fee;and although this is also true as to heirs, yet “heirs” is a good description of parties standing in a certain personal relation to others;while assignees cannot exist if there is nothing to assign. Assignees, therefore, must mean here either the assignees of the heirs (as the first fiars) or the assignees of the liferenters, in so far as a faculty to assign or dispone is conferred by the deed. The adoption of the first of these alternative views would give more power to the right of fee, as transmitted from one sister to the other, and would imply a right in the fiars to assign unless expressly restrained from doing so.

4. In this case Fanny, the eldest daughter, was the first deceaser, and left no child. She made no attempt to dispose of her share otherwise than to leave her husband a jointure annuity, which is plainly sanctioned by a clause in the deed, and which took effect. But what then became of the fee of that share ? According to the construction of the word “heirs “above adopted, it vested in equal parts in her two sisters, and if so, they thereby acquired a higher right to their shares of her share than they had to their own. Their right in this sixth part of the estate became a right of fee. There are other clauses which may restrict the enjoyment of it to alimentary uses, and prevent alienation inter vivos;but supposing these effectual, the positive creation of a fee in the surviving sisters is unaffected.

5. The second daughter dies leaving no issue. What becomes of the shares of the estate in which she is interested ? Her liferented third goes to the only surviving daughter in fee according to the construction of the destination we have adopted. Her fee of the sixth, derived from her elder sister, will transmit by law to some one. But as to this there is no special destination in the trust-deed. When once the fee of a liferented share has vested in the liferenter's heirs, it is not destined quoadultra to any one. This I hold to be very clear, and to be of considerable importance in the case. At common law, however, the fee must transmit, and if there is no positive disposition of it, it will go to the third sister. But is there any prohibition or incapacity in the second sister to dispose mortis causa of this fee ? I see no exclusion of this—certainly no clear exclusion; and I think it ought to be remembered that an entail or a protected substitution in moveables is not to be presumed.

Some expressions may be founded on as indicating an intention adverse to these views. But I do not think them conclusive. If the creation of a fee implies the power of disposal, then the conferring of a partial power is not conclusive against the existence of the full power that is involved in the very nature of the thing. If we could hold that a fee is not created in favour of the heirs of the predeceasing daughters, that would be another matter. But we are driven to hold such a fee to exist, otherwise there would be no collateral succession at all, which would defeat the whole deed. And if there is such a fee, we cannot, at the same time, annihilate it because some superfluous powers are given' Some of the clauses, as I already suggested, are nonsenstical in their literal terms. Thus, the declaration (above quoted) has apparent propriety, because it seems to ‘peak of an assignment of a liferent mortis causa. But if that liferent includes something that is truly a right of fee, the clause becomes intelligible, and seems to afford a warrant for an of that fee mortis causa.

It is impossible also to overlook the vacillation and consequent uncertainty that attends some of the language used. In the passage at the end of the deed, one part of the clause speaks of the decease both of the testator and of other sisters, but the introductory part speaks only of what they have power over as succeeding to it through my decease, which seems to exclude what is succeeded to as sisters.

If in this case Mrs M'Naughton had left a child, what would have been the result? The child (in the absence of any will or disposition) would have succeeded to the third as conditional institute, but to the sixth not as institute but as next of kin at common law and under the deed. If so, they must have represented the deceased and been liable for her debts and deeds ad valorem. But I also think she could have left this sixth to them as she pleased, or cut them out of it altogether. I see no words in the deed to exclude that. But if she could have cut out her own child as being the fiar of this sixth, surely it is not to be presumed that she cannot cut out her more remote next of kin— her surviving sister. It is not to be presumed that a right of succession not provided by the deed but at common law is thus protected.

The Lord Ordinary holds Mrs Kirk to have only a liferent in the four-sixths that have come to her. But this seems erroneous in any view. What she has got as a fiar or next of kin is held in fee.

The conclusion I come to is that Mr M'Naughton has right to one-sixth of the estate, as that of which his wife possessed the fee, and which she was not legally debarred from alienating to him mortis eausa; but that he has no right to the third which his wife liferented, of which the fee passes to her sister, and over which she had no power or faculty beyond the survivorship annuity which she was entitled to create in her husband's favour to the extent of one-half of her liferent, and which is not disputed. Mr M'Naughton, therefore, will get this annuity. He will also get, as his wife's assignee, the sixth of the estate which had vested in her from her elder sister's liferented share.

The deeds exercised by Mrs M'Naughton go beyond her legal powers;but that is no good reason why these should not be sustained so far as they are within her powers.

Lord Benholme dissented on the ground that it was the intention of the testator to create as many liferents as there were families.

The Lord Justice-Clerk and Lord Cowan concurred with Lord Neaves.