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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rhind's Trustees v. Fletcher and Others [1866] ScotLR 3_91 (5 December 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/03SLR0091.html
Cite as: [1866] SLR 3_91, [1866] ScotLR 3_91
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SCOTTISH_SLR_Court_of_Session
Page: 91↓
Court of Session Inner House Second Division.
v.
Facts:
A person left a legacy to his aunt, and directed his trustees, in the event of her predeceasing him, to convey it to her children, and the survivors or survivor of them equally. The aunt predeceased the testator, leaving several children, and also grandchildren by a daughter who had died before the date of the settlement. Held that these grandchildren were not entitled to participate in the legacy, either under the words of the destination or on the principle of the conditio si sine liberis decesserit.
The competition in this case relates to the fourth part of a legacy of £2000 left by the deceased Alexander Henry Rhind, who died on 3d July 1863, under his trust-disposition and settlement, dated 1st January 1861, to his aunt, Mrs Anne Rhind or Gunn; and “failing her by death before the term of payment of said legacy, and leaving lawful children,” he directed his trustees to “convey and dispone to such children and survivors or survivor of them equally among them, the share which their deceased parent would have received if alive.” The said Mrs Anne Rhind or Gunn predeceased the truster, she having died on 26th February 1862. Mrs Gunn had several children by her marriage with her husband, George Gunn, and among them a daughter, who was married to John Leith, but who died before her mother, and before the foresaid trust-disposition and settlement was executed, leaving children.
The competing claimants are the children of Mrs Anne Rhind or Gunn who survived her, and the children of Anne Gunn or Leith, who died in the circumstances above stated.
The Lord Ordinary (Ormidale) held that no part of the legacy of £2000 in question ever vested in Anne Gunn or Leith, the mother of the claimants, the Leiths; and that the maxim si institutus sine liberis decesserit was inapplicable to their position, and was not available to them. He accordingly preferred the other claimants.
The Leiths reclaimed.
Solicitor-General and John Hunter, for them, argued—The testator did not care for particular relations or degrees of relations. He liked them and their families all equally well. He speaks promiscuously of children, family, issue. The expression children includes grandchildren, unless there is a limitation in the context. If not, the Court will favour the extension of the meaning to grandchildren, if they are otherwise cut out. And a testament expresses intention as at the date of death. Holt v. Mackenzie, 2d Feb. 1701, M. 6602; Roughead v. Rennie, M. 6403; Christie v. Patersons, Fac. Col., 5th July 1822; Wishart, M. 2310; Sturrock v. Dunlop, 6 D. 117; Williams’ Execut. vol. ii. p. 988; Roper, i. p. 68; Jarman on Wills, ii. p. 135; Magistrates of Montrose, 1738, M. 6398; Black v. Valentine, 6 D. 689; Smollet, 23d Nov. 1810, F. C.
Young and Lee, for the other claimants, answered—The authorities are clear that the word children does not include grandchildren. The testator did not intend to include grandchildren here; he says “leaving lawful children.” Mrs Leith was not left; she predeceased her mother. The condition si sine liberis decesserit can never receive effect in favour of children, unless it shall appear that the testator contemplated the institution of the parent. There must be an institute to allow the maxim to apply, but here the pretended institute was dead. Sturrock, 6 D. 117; Black v. Valentine, 6 D. 689; Aitchison, M. 1333; Sandford on Entails. D. 376.
At advising,
Page: 92↓
The testator was predeceased by his aunt, Mrs Gunn, who died on 26th February 1862, leaving four children, one of whom, however, died in the lifetime of the testator, unmarried. Mrs Gunn had another child who predeceased her, having died in 1855, previous to the date of the settlement, leaving four children, the issue of her marriage with John Leith. And the question is, whether these grandchildren of the testator's aunt are entitled to share in the legacy of £2000. The mother of the Leiths was a lawful child of Mrs Gunn, but having died before the date of the settlement, are her children entitled to take their mother's place in the division of the legacy, either under the words of the deed as included within the term “children,” or on the ground of the presumed will of the testator and the application to the case of the conditio si sine liberis decesserit?
The Lord Ordinary has rejected the claim of the Leiths, and on a review of the authorities to which reference was made at the debate, I entertain the same opinion, being unable, with due regard to the nature and terms of the settlement, and especially of the provision in question, and to the true effect of the decisions, to find satisfactory ground for a different conclusion.
It is all important to keep in view that this is not a settlement by a father upon his children and their descendants. In such a case the pietas paterna and the natural duty incumbent on a parent to provide for his issue, immediate or remote, has been held to justify the application of a more enlarged and liberal interpretation of the terms he employs in his deed than would otherwise be admissible. Neither is it a settlement by one who stood in loco parentis to the objects of his bequest, as in the case of an uncle settling provisions upon his nephews and nieces or on the children of his brothers and sisters. To such a case, in ascertaining the will of the testator, the same principles of construction have been held applicable. The present is not a case of that description. The settlement is by a nephew leaving a legacy to his aunt, and in the event of her death to her children, his cousins. It cannot, therefore, be treated on any other principle than the settlement of a testator who as bequeathed legacies to stranger legatees. A legacy to a cousin or to cousins has never, except in the case of Christie, to be afterwards noticed, been thought open for construction on any other rule or principle than ordinary legacies are, where the relationship is more distant, or where no relationship subsists between the testator and his legatees.
The peculiarity of the present case is, that the mother of the Leiths died previous to the date of the settlement. It is not necessary to determine what effect that specialty might have had, had the testamentary provision to be construed occurred in the settlement of a parent, or of one standing in loco parentis to the legatees. Even in such a case the decisions referred to in the note of the Lord would have presented an obstacle which it would have been difficult to get over. The testator in the case of Wishart v. Grant, where the same peculiarity occurred, stood in the relation of uncle to the children of his sisters, on whom the provision was made. And in Sturrock v. Binnie the same relationship subsisted as between the testator and the liferenter, whose children were called as fiars. No doubt in this last case Lord Moncreiff was in the minority, concurring in the interlocutor of the Lord Ordinary, which was altered by the then Lord Justice-Clerk and Lord Cockburn, Lord Medwyn being absent. But whatever difficulty might be felt in a similar case, it will mainly arise from the circumstance of the testator being in loco parentis of the legatees. The Lord Justice-Clerk, in the opinion which he delivered, explains that he held the description of the persons favoured, as “all my nephews and nieces,” children of his brothers and sisters, not to be of the same comprehensive character as a provision to “all my children in liferent and their issue in fee;” and he adds, as a general principle in such cases, “When the testator stands in the relation of parent, and under a duty to provide for children and their descendants, the rule is so to construe the will if possible as to make the provision include all children, although not in existence at the date of the will.” This principle he held not to be applicable so strongly, if at all, to the case of an uncle providing for his nephews and nieces, and specially not to apply to the deed then before the Court for construction. The present case, however, is not one where any duty existed on the part of the testator to provide for the objects of his bounty. Now, the established rule of law is that a legacy lapses by the predecease of the legatee when children are not called to the succession; but where a legacy is bequeathed to a class and not nominatim, only those falling within the description can be held included who are in existence when the legacy is bestowed. When a legacy is given to the children of A. B., the natural meaning of the term is children then in existence. They alone can take as legatees under the general description. A legacy to a person who is dead at the date it was bestowed can have no legal effect given to it. And on the same principle, one of a class who has previously died cannot take any legal interest under a legacy to the class. There can be no distinction in this respect between a nominatim and a class legatee. And as little can the issue of such a party claim the share their parent if alive would have received, unless there be words in the settlement conferring such an interest or room ex presumpta voluntate testatoris for holding such right and interest to have been conferred. In the present settlement, it is the “lawful children” left by the aunt predeceasing the testator, who are to take the share which the aunt would have received. There is not a word in the deed that can be held to confer their parent's share in express terms on the issue of children who had predeceased the date of the settlement, whatever room there might be under the condition si sine liberis for holding the issue of children, alive at the date of the deed, but predeceasing the testator, to have taken in the place of their parent.
As regards the application of the conditio si sine liberis to this case, there is no room for its application any more than there was in the case of Sturrock, or in the previous case of Wishart. There must be a legatee instituted, in the first instance,
Page: 93↓
The voluntas testatoris, however, is appealed to, to the effect of having it inferred that when the testator called the “lawful children” left by his aunt, he must have intended to include all her children, whether then alive or previously dead; and it is contended that, the will of the testator king the ruling element, it can be of no materiality in ascertaining that will, whether one of the children had died before the date of his deed, or whether the child, being alive at that date, should die before it came into operation. To this consideration Lord Moncreiff was inclined to give great weight in the case of Sturrock; but it is obvious that in that case the observation could be made with more force than in the present, for the testator then stood in loco parentis to the children. No doubt it is the will of the testator to which in all such cases we must give effect; but care must be taken, when general words are for construction, that we do not give effect, by straining the terms of the deed, to mere conjectural intention as to what we may imagine the testator might probably have intended. It is the enixa voluntas—the intention clearly and palpably coming out on the face of the deed—that may be taken, where the words admit of it, as of primary moment in considering their construction; and in this view I do not think there is room for giving the effect contended for by the Leiths to presumed intention on the part of the testator to include in the term “children” left by his aunt on her predecease and the “survivor or survivors of them,” a child who bad predeceased the date of the settlement and her Issue. The implied condition being inapplicable to the case, so far as the Leiths are concerned, the fair meaning of the terms points solely to children then in existence and the survivors or survivor of them.
In a certain class of cases the term “children” has sometimes been construed to include grandchildren; but this has never been held in circumstances similar or analagous to the present. Under the presumed condition, when applicable, grandchildren have taken as coming in place of their parents; but there is no instance of the term “children” being construed to embrace grandchildren as well as the immediate issue. They may have been held entitled to take as coming in place of their parents ex presumpta voluntate, but not as direct legatees; and I think it clear that the grandchildren of Mrs Gunn were not called along with her immediate issue. Were this held, they must all be entitled to take per capita, which cannot be inferred with any reason to have been intended by the testator on the face of this deed. The principle on which, in the entail cases which were referred to at the debate, powers to provide children out of the rents of the estate were held to support provisions to grandchildren, is quite inapplicable to the construction of such deeds as the present.
The other Judges concurred; and the reclaiming note was therefore refused.
Solicitors: Agents for Reclaimers— Morton, Whitehead, & Greig, W.S.
Agent for Respondent— H. W. Cornillon, S.S.C.