Scottish Court of Session Decisions

James Sharp, farmer, Townhead of Quoigs, died on 4th November 1856, leaving a trust-deed in which he conveyed to trustees for certain purposes his whole estate, heritable and moveable. By his trust-deed he assigned any years that might remain of the lease of his farm, and a liferent

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of the annual proceeds of his moveable estate. The fourth and fifth purposes were in the following terms:—“ Fourthly, I direct my trustees, at the expiry of the-current lease, provided my death shall happen prior to that time, or if not, at the first term of Martinmas after my decease, to sell, realise, and convert into money, the whole crop, cattle, sheep, horses, implements of husbandry, farm-stocking, and other moveable estate above conveyed (the household furniture and bed and table linen excepted): Fifthly, I appoint my trustees to pay to my wife, in case she shall survive me, one-fifth part of the whole personal or moveable estate before conveyed, or the proceeds thereof, and that at the first term of Whitsunday or Martinmas after the crops, stocking, and others have been sold and converted into money as aforesaid: And lastly, with reference to the residue and remainder of my moveable means and estate, I direct and appoint my trustees to pay over and divide the same to and among my children as follows, viz.—One-fifth share to each of my sons John Sharp and William Sharp, one-fifth share to each of my daughters, Christian Ann Sharp and Jean Sharp, and the remaining fifth share I direct my trustees to invest upon heritable or personal security, and hold and retain the same for behoof of my eldest son James Sharp, and pay over to him each year the interest only, but with power to my trustees to uplift and pay to my eldest son the whole or a portion of the principal sum so to be invested, if they deem it expedient so to do: declaring that in case any of my children shall die before the reversion of my means and estate shall be divided in manner herein provided without leaving lawful issue, then and in that event the share of such deceaser shall lapse and become part of the residue of my trust-estate, and be disposed of equally among my surviving children and their issue in manner herein directed: but declaring that should any of my children die leaving lawful issue, such issue shall succeed to their, his, or her parent's share of my estate in the same way as the parent would have done if alive.”

Mr Sharp was survived by his wife and the five children named in his settlement. The trustees accepted of the trust. The lease of the farm of Townliead of Quoigs expired at Martinmas 1858, and towards the end of November 1858 the value of the trust-estate was ascertained, and the residue, in terms of the trust, divided into five shares, the amount of each share being “455, 4s. 10d. After the division was made, four of the children, viz., John Sharp, William Sharp, Christian Ann Sharp, and Jean Sharp, received payment of their respective shares. The share of James Sharp junior, with the exception of “53,17s. 6d., which was paid by the trustees to him since the division was made, was kept in bank on deposit-receipt in the names of the trustees, and the interest regularly paid to him down to the 27th day of February 1869. Janet Andrew or Sharp was married to James Sharp junior on the 23d day of October 1865, and he having died on the 11th day of March 1869, intestate, and without issue, she as his widow claimed one-half of the balance of “401, 7s. 4d. of her husband's share of his father's estate. The trustees, and John Sharp, William Sharp, Christian Ann Sharp or Eadie, and Jean Sharp or Struthers, the surviving children of James Sharp, claimed the whole balance.

The questions for the opinion of the Court were—

“1. Whether Mrs Janet Andrew or Sharp is entitled, as widow of James Sharp junior, to one-half of the said balance of £401, 7s. 4d.?

“2. Whether the whole balance falls to be divided equally among the surviving children of the testator?”

Solicitor-General for Mrs Sharp.

Shand and Keir for other parties.

The Court held the widow was entitled to her husband's share. The son's share was throughout the deed spoken of by the truster as his share, and, though under trust, it was equally his. The devolution to the children could only occur under the reversionary clause, but it did not contemplate the event that had occurred. The alternative was intestacy, and that was not to be presumed.