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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case for John Moinet and Others (Aitken's Trustees) and Others [1871] ScotLR 9_180 (22 December 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0180.html
Cite as: [1871] SLR 9_180, [1871] ScotLR 9_180
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SCOTTISH_SLR_Court_of_Session
Page: 180↓
Court of Session Inner House First Division.
Facts:
Where a truster left the residue of his estate to be liferented by his two sisters equally, share and share alike, and, upon the death of either, appointed his trustees to divide annually the produce of the half share of the residue liferented by her “equally among her children, until her youngest child attains the age of twenty-one years,” and then to divide “the said half equally among the said children, or survivors of them, then alive—
Held that the conditio si sine liberis applied in favour of the issue of children surviving the truster, but predeceasing the liferentrix. But that they were only entitled to the share which their own parent would have taken in his or her own right, and were not entitled to participate in the share of another child, who survived their own parents, but predeceased the time of payment.
The late Samuel Aitken, of the firm of Bell & Bradfute, booksellers and publishers in Edinburgh, whose trustees were the first parties to this Special Case, left a trust-disposition and settlement, dated 14th October 1835, with a codicil attached, dated 8th June 1846, whereby he conveyed his whole estate, heritable and moveable. In the first three purposes of this trust, and in the codicil above mentioned, he bequeathed certain legacies to the parties therein named. The remainder of the trust-deed deals with the residue of the estate, and the clauses important to the present question are as follows:—“ Fourth, I appoint my said trustees annually to pay to my said aunt Janet Aitken during her lifetime, for the suitable maintenance of herself, my sister Priscilla, aunt Elizabeth Aitken, and my grandmother, residing with her, the just and equal one-third part of the free annual produce of the residue of my said heritable and moveable estate, after deducting all taxes, feu-duties, repairs, insurances, and others exigible, and to pay to my said father annually during his
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life another just and equal one-third part of said free annual produce of the residue of my said estate, and to pay to my said sisters Margaret and Elizabeth equally, share and share alike, and their children equally per stirpes, failing them—that is to say, the children equally to succeed to their mother's share failing the mother—the remaining just and equal one-third part of said free annual produce of the residue of my estate. … Seventh, I appoint my trustees, upon the death of my father, to divide the third of the annual produce of the residue of my estate given unto him into two parts, and to give annually to said Priscilla Aitken one part, and to the said Margaret and Elizabeth Aitken equally, and their children equally per stirpes, the other part. Eighth, In the event of my sister Priscilla dying before my father, I appoint my trustees to pay annually to my said father one-half of the third share payable to her, and the other half thereof equally betwixt the said Margaret and Elizabeth Aitken my sisters, and their children equally per stirpes. Ninth, Upon the decease of the last survivor of my father, sister Priscilla, aunts Janet and Elizabeth, and my said grandmother, I appoint the annual produce of the residue of my estate to be equally divided betwixt my sisters Margaret and Elizabeth during their lives, and upon the decease of either of them, such deceaser's share thereof shall be equally divided among such deceaser's children, and on the youngest child attaining majority, or twenty-one years of age, I appoint my trustees to divide among such children, or survivors of them then alive the one-half of the residue of my estate, and they shall retain the other half for behoof of the surviving sister, to whom the annual produce of such half shall be annually paid; and at her decease such produce shall be divided equally among her children, until her youngest child attains the age of twenty-one years, when the trustees shall divide the said half equally among the said children, or survivor of them, then alive.” It was upon this ninth clause that the question involved in this Special Case immediately arose. The said truster died in 1847; and the last survivor of the parties mentioned in the ninth purpose of the trust-deed died in 1858. So that in that year the residue of the estate came to be distributed in terms of said ninth purpose. The truster's sister Elizabeth (Mrs Harroway) predeceased the date at which the said ninth purpose came into operation, and no question arises as to the one-half of the residue destined to her children. Her children all survived her, attained majority, and received payment of their several shares of the succession. The testator's sister Margaret Aitken was married to John Wright. She survived her husband, and died a widow on 23d September 1870. All her surviving children are of age, and the capital sum of one-half of the residue, which she liferented, is now divisible in terms of the said trust purpose. The proper distribution of this sum is the subject of the question in the present Special Case.
The said Mrs Margaret Aitken or Wright had ten children, of whom three died unmarried and without issue, namely, Jane in 1834, Bertha in 1844, and Alice Gertrude on 13th July 1870,—all therefore predeceasing their mother. Three more also predeceased their mother, leaving issue, viz., Eliza Wright or Lloyd, who died in 1862; Margaret Wright or Vennimore, who died in 1866; and Alexander Wright, who died 23d April 1870. The interests of the children of these three predeceasers were represented by the trustees, the first parties to the case.
The remaining four children of Mrs Wright survived her, and were the parties of the second part to this case. The value of the one-half of the residue, which is the subject of the question herein stated, was estimated at or about £3000. The second parties claimed to be entitled to the whole of this sum, and the trustees, the first parties, conceived that the children of the said second parties' deceased brother and sisters were entitled to a certain share thereof. They therefore humbly submitted to the opinion and judgment of the Court the following:—
“1. Are the children of the said Mr Wright, Mrs Lloyd, and Mrs Vennimore, mentioned in article seven, entitled, in virtue of the implied condition si sine liberis decesserit, or otherwise, to a share of one-half of the residue of the truster's estate, liferented by Mrs Margaret Aitken or Wright?
2. If this question be answered in the affirmative, are the children of the said Mr Wright, Mrs Lloyd, and Mrs Vennimore, respectively, entitled to one-seventh, or to one-tenth only, or otherwise to what share of the one-half of said residue?”
Watson and Maclaren for the first parties.
Millar, Q.C., and Duncan, for the second parties.
Authorities— Mackenzie, Feb. 2, 1781, M. 6602; Wallace v. Wallace, Jan. 28, 1807, M. Ap. v. “Clause,” No. 6; Thomson's Trs. v. Robb, July 10, 1851, 13 D. 1326; Macgown's Trs. v. Robertson, Dec. 17, 1869, 8 Macph. 356; Hamilton v. Hamilton, Feb. 8, 1837, 16 S. 478; Douglas's Exrs., Feb. 5, 1869, 7 Macph. 504; Sturrock v. Binny, Nov. 29, 1843, 6 D. 117; Donaldson's Trs. v. Macdougall, July 20, 1860, 22 D. 1527 [and in the House of Lords, under the name Young v. Robertson, Feb. 1862, 4 Macq. 337]; Graham's Trs. v. Graham, 6 Macph. 820; Laing v. Barclay, July 20, 1865, 3 Macph. 1143; Cockburn's Trs. v. Dundas, June 10, 1864, 2 Macph. 1185; Thornhill v. Macpherson, Jan. 20, 1841, 3 D. 394; Wood ( Richardson's Tr.) v. Cope, March 8, 1850, 12 D. 855; Newton v. Thomson, Jan. 27, 1849, 11 D. 452; Dig. 35, 1, 102; Code 6, 25, 6; and 6, 42, 30.
At advising—
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Now, we are concerned here with that half of the estate which was liferented by Margaret Aitken or Wright, and now belongs to her descendants. The state of her family is described to be as follows:—She had ten children, four of whom survived, and are the parties of the second part to this case. Six predeceased their mother, and of these, two, Jane and Bertha, predeceased the testator himself, and a third survived until July 1870, and then died without issue. The remaining three are all dead, having survived the testator, but predeceased their mother the liferentrix, and have all left issue. The claim made here by the trustees is on behalf of the issue of these three predeceasing children. The question is, Whether these issue are entitled to take the shares which would have belonged to their parents? and that depends upon the construction of the clause which I have already referred to at length. The provision of this clause, with which we have to deal, directs the trustees to divide such share of the residue “among the said children or survivor of them then alive,”—that is, alive when the youngest attains the age of twenty-one years. Now, it must be observed here that this is a general family settlement. This fund is directed to be divided in equal shares among the children of his sister, and there is a clause of survivorship, the result of which is a conditional institution of the survivors in the shares of any children predeceasing the term of division. These circumstances appear to me sufficient to let in the condition si sine liberis decesserit, and to contrast this case with the one of M'Call's Trustees, just decided. This is in fact, I think, just the very case to subject the condition of survivorship to the other condition of si sine liberis. This is quite clear on the terms of the deed. The only difficulty arises from the expression used by the testator as to the disposition of the income accruing between the death of the liferentrix and the majority of her youngest child. It is provided that, upon the death of the mother, the income shall be equally divided among her children, until the youngest attains the age of twenty-one years, and no doubt the use of these words appears to exclude the issue of predeceasing children. But I am quite satisfied that the true interpretation of this provision is, that those who presumptively are to take the fee are in the meantime to share the income. To them, until the period of division comes, the income will be payable, and it would be difficult, I think, to put any other interpretation upon these words.
There was, however, another question raised, which requires a little more attention. The first two deceasers among Mrs Wright's children predeceased the testator, and therefore, when he died, there were only eight children of Mrs Wright's in existence. The first two predeceasers cannot therefore be taken into account at all, and therewere therefore only eight who had any prospect of succeeding. But of these eight, one died so recently as 1870, and those three who died, leaving issue, all predeceased their mother, the liferentrix. Alice, the one who died in 1870, without issue, was the last to die, and the question arises, Whether the share of Alice goes to the four surviving children only, or whether the issue of the three predeceasers are entitled to come in for a share? Now, the principle upon which the cases of Young and Graham were decided, appears to me to be quite applicable to the present case. It was there held that, while under the conditio si sine liberis the issue of a predeceasing child were entitled to take the share which their predeceasing parent would have taken in his or her own right, they were not entitled to participate in the share of another predeceasing child, which was to go under a clause of survivorship to those who survived a certain specified period.
Here no child can take in his own right unless he survive the term of distribution, and it is to defeat this result that the conditio si sine liberis is introduced and applied. In the case of a child predeceasing the date of distribution, the share of that child shall go, according to the provisions of the deed, to the survivors, unless there is any principle of law to prevent it. Now, What does the deed say? That this fund shall be divided “among the said children, or the survivors of them then alive.” If, then, the conditio si sine liberis were made to apply to Alice's share at all, it could only be in favour of Alice's own children, had she left any. But the proposal here is to apply it in favour of the issue of other children who predeceased both Alice and the liferentrix. Now, that is an application of the conditio si sine liberis for which I have heard no authority at all. I am therefore of opinion that the children of Mrs Loyd, Mrs Vennimore, and Alexander Wright are, each family of them, entitled to one-eighth part of half the residue, and that the four surviving children of Mrs Wright are entitled to one-eighth part in their own right, and also to one-fourth of the one-eighth which would have gone to their sister Alice, in virtue of their survivorship. The judgment of the Court, if your Lordships agree, will have to be framed in accordance with this view.
Upon the remaining question we could not, in my opinion, decide otherwise than proposed by your Lordship, without going directly in the face of the decisions, or of the principle at least established by the decisions of the House of Lords in the case of Young v. Donaldson, and of this Court in Graham's case. In both of these cases it seems to me that the principle followed was that the survivance of the term of payment regulated the division. If the child or nephew does not survive the
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Mr Samuel Aitken, the testator, died unmarried. His settlement is made in favour of his nearest relatives, and is a very marked expression of a conscious obligation to make a suitable provision for these. The primary direction of the settlement, after payment of debts and certain small legacies, is to divide the annual produce of the testator's entire estate into three equal portions. One of these is to be paid to his aunt Janet Aitken during her lifetime, to be applied for the maintenance of herself, the testator's sister Priscilla, his aunt Elizabeth Aitken, and his grandmother, all of whom seem to have resided together. Another was to be paid to the testator's father during his life. The remaining third was to be paid “to my sisters Margaret and Elizabeth equally, share and share alike, and their children equally per stirpes failing them;—that is to say, the children equally to succeed to their mother's share, failing the mother.” Various provisions follow as to the effect to be produced, on this division of the annual proceeds, by the death of these various parties. And the ninth provision. bears—“Upon the decease of the last survivor of my father, sister Priscilla, aunts Janet and Elizabeth, and my said grandmother, I appoint the annual produce of the residue of my estate to be equally divided betwixt my sisters Margaret and Elizabeth during their lives; and upon the decease of either of them, such deceaser's share shall be equally divided among such deceaser's children; and on the youngest child attaining majority, or twenty-one years of age, I appoint my trustees to divide among such children, or survivors of them then alive, the one-half of the residue of my estate; and they shall retain the other half for behoof of the surviving sister, to whom the annual produce of such half shall be annually paid; and at her decease such produce shall be divided equally amongst her children, until her youngest child attains the age of twenty-one years, when the trustees shall divide the said half equally among the said children, or survivors of them then alive.” An after codicil confers some personal legacies, which do not affect the present question.
A controversy now arises as to the shares of three children of Margaret Aitken or Wright, who predeceased their mother, the liferentrix of one-half of the residue, leaving issue. The liferentrix now being dead, the question is, Whether the shares of these three children have passed to their issue, or have devolved on their surviving brother and sisters?
I am of opinion that the former of these is the true legal conclusion in the case. The fund was settled, evidently by way of provision, on the mother in liferent, and her children, or the survivors, in fee. I consider this to be precisely the case in which the law holds it to be the implied will of the testator that children should succeed to their parents' share in preference to surviving brothers and sisters. The children of the testator's sister were favoured as a class, and with no individual preference of one over another. Their maintenance was very clearly the chief subject in view—first through means of their mother's liferent, and afterwards through division of the produce amongst the children till the youngest attained twenty-one. I have no doubt that, under the provisions of the settlement, all the children surviving the mother shared in the annual division, even though some of them should die unmarried before the youngest attained twenty-one, simply because so the will of the testator prescribes. If any of them died before their mother, I have equally little doubt that the implied will of the testator must be held to carry their share to their children, in preference to the surviving brothers and sisters. I consider this to be a very clear and ordinary exhibition of the application of the conditio si sine liberis. Its application arises out of the simple fact that the testator was here providing for certain near relations as a class, and providing for them out of the feeling of a moral obligation so to do; in which case all the presumptions of affection are in favour of the children of any one of them taking in room of the parents, and not being excluded for the benefit of their surviving uncles and aunts.
I am therefore of opinion that the first question put to us must be answered in the affirmative. But a subordinate question has been raised before us, viz.—Supposing the children to come in place of their parent, whether they are entitled to any more than the parent's proper share as one of ten children, and are not excluded from all participation in the shares belonging (as assumed) to three children who predeceased their mother without issue. Of these three children, two, Jane and Bertha, predeceased the testator; the third, Alice, lived till 1870. It is argued that the shares of these predeceasers, or at all events the share of Alice, passed by accretion to the brothers and sisters surviving the widow, exclusive of the children taking under the conditio si sine liberis. And reference has been made to some recent authorities as deciding that children so taking only take the parent's proper share, and not that which accresced by survivorship to the parties alive at the date of vesting.
I am of opinion—though in this having the misfortune to differ from your Lordships—that there is no good ground on which to limit the right of the children as is proposed; and that the present case does not afford termini habiles for applying the doctrine of the authorities referred to. In these other cases the right was given to certain individuals nominatim, and the share of a predeceaser without issue accresced by virtue of an express provision in favour of survivors. Thus, in the leading case of Donaldson's Trustees, the provision was that the estate of the testator was to be paid or accounted for “after the death of the last liver of me and my said wife, equally to and among John Macdougall, lieutenant in the Honourable East India Company's Service, at Madras; William Macdougall, indigo planter at or near Calcutta, sons of my late niece Mrs Catherine Donaldson or Macdougall; Young or Thomson, wife of Dr
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The more recent case of Graham's Trustees differed as to the terms of the deed, which were very peculiar; but involved the same specialty of a destination to parties called nominatim, with an express conditional institution in favour of the survivors.
In the present case there is nothing of this kind. The provision is not in favour of individuals called nominatim, with an accretion expressly declared in favour of survivors at a particular date. It is in favour of a class, and of the survivors of that class alive at a period mentioned. The survivors take in their own right, not by virtue of any declared accretion of a predeceaser's share. The predeceasers without issue were simply in the position of never having right at all under the terms of the instrument. Thus, Alice Wright, who predeceased her mother, had no right given her by the deed, and no right accresced from her to any one. Whether she survived any of her brothers or sisters or not seems to me utterly immaterial, for the survivorship of the deed was not of one of the brothers or sisters over the others during the life of the mother; it was survivance of the mother herself. The death of Alice gave no right to her surviving brother and sisters. They only acquired right by surviving the mother, and their right was then a direct one in their own persons by virtue of such survivance. All this, I think, arises directly out of the terms of the deed; and it is by these, I think, the case must be ruled, as I think it is on the difference of phraseology in these material respects that the decisions in the other cases must be held rested. The difference of phraseology is, in such a case, the all in all. The present case, as I view it, does not comprise any question as to the share of a predeceaser without issue, for no such share ever existed. The entire question lies between the survivors taking in their own right and the children of predeceasers claiming to take in room of the parent. Whenever the children are found entitled to take, there is, to my mind, no doubt as to what it is they shall take. It is just the equal share which the parent, if surviving, would have taken with the actual survivors. There is no question as to an accresing share, for no accresing share has existed.
In this view, I think the second question should be answered to the effect of declaring that the fund must be divided into seven shares, equally appropriated to the four surviving children, and the issue per stirpes of the three who predeceased leaving children.
Solicitors: Agent for the First Parties— John Auld, W.S.
Agent for the Second Parties— John T. Moubray, W.S.