Scottish Court of Session Decisions

The narrative of the deed of 1827 bears that, on account of the death of one of the truster's sons and other reasons, he had resolved to make the additions to and alterations upon his settlement. The residue was now to be divided into six shares. Various provisions follow. The trustees were directed to lay out Jane's one-sixth share in the same manner as mentioned in his former settlement with regard to the one-seventh share there provided to her. The clause of return, in case of failure of issue, was not specially repeated. Shortly after, Jane married the late William Oliphant. Mr Morgan was a party to her antenuptial contract, in which, and also in a relative codicil executed by Mr Morgan in 1828, it was provided that, in the event of her dying without issue, two-thirds of her share should, subject to her husband's liferent, in case of his survivance, revert to his (Mr Morgan's) heirs, executors and assignees.

Mrs Oliphant died without issue in 1851, and Mr Oliphant in 1868. Questions having arisen as to the disposal of the two-thirds of the share liferented successively by Mrs Oliphant and her husband, a Special Case was presented to the Court. The case turned upon the interpretation

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of the codicil of 1828, and of the marriage-contract of Mr and Mrs Oliphant, and particularly on that of the words “my own nearest heirs, executors and assignees.”

The Court pronounced the following interlocutor:—

“31 st May 1870.—Find and declare that on the death of Mrs Jane Oliphant without issue in 1851, the right of fee of two-thirds of the one-sixth of her father George Morgan's estate (settled on her and her husband and children by her marriage-contract, and the codicil of the said George Morgan's settlement, dated 17th July 1828), did, in terms of the said marriage-contract and codicil, revert to the trustees under the said George Morgan's settlement, as his assignees, to be distributed by them as part of the residue of the trust-estate, and decern.”

After the date of the judgment the trustees of William Oliphant, who were not parties to this special case, on hearing for the first time of the questions which had arisen regarding George Morgan's estate, preferred a claim, on the ground that the share above mentioned, having reverted to George Morgan's trustees, fell to be dealt with by them as undisposed of residue, and to be distributed to the next of kin of George Morgan or their representatives. In this view they claimed as in right of Mrs Oliphant, she and her husband having executed a mutual settlement of their whole estate.

The representatives of George Morgan's other children maintained that the share fell to be distributed according to the provisions of the settlement of 1823, and fell under the clause of survivorship therein.

A second special case was presented, the parties being (1) the representatives of George Morgan's other children; (2) Oliphant's trustees.

The questions were as follows:—

“(1) Does the said share of the late George Morgan's trust-estate fall to be dealt with by his trustees as undisposed of residue, and to be distributed by them among the representatives of the six children of the truster who survived him in the character of next of kin at the time of his death? Or—

(2) Does the said share fall to be otherwise distributed under the provisions contained in the truster's trust-disposition and settlement, and additional trust-disposition and settlement?”

Muirhead and A. Gibson for the first parties.

M'Laren, for the second parties.

The Court were of opinion that the deed of 1827 did not supersede that of 1823, except in so far as its provisions were inconsistent with it; that consequently the share in question fell to be distributed under the provisions of the settlement of 1823; answered the first question in the negative, and the second in the affirmative; and found the parties of the second part liable to the parties of the first part in expenses.