Scottish Court of Session Decisions

This was a Special Case for the opinion and judgment of the Court, between William Grant, Twin Cottage, Chapel Street, Aberdeen, executordative of the deceased Rev. George Grant, sometime of Aberdeen, and executor of the deceased children of the said Mr Grant, of the first part; and Mrs Elspet Ogilvie or Murray, widow of Alexander Murray, Whitehills, parish of Boyndie, county of Banff, and William Coutts, solicitor, Banff, a majority and quorum of the trustees of the said deceased Alexander Murray, of the second part. By a trust-disposition and settlement, dated 17th May 1860, and with codicil annexed, dated 1st October 1860, Alexander Murray, residing in Whitehills, in the parish of Boyndie and county of Banff, conveyed to trustees for the purposes therein specified, his whole estate, heritable and moveable, and he nominated his trustees his sole executors. Among the purposes of the trust-deed were the two following:—“(12th) I bequeath to each of my daughters Elspet Murray, Ann Murray, Barbara Murray, Margaret Jane Murray, and Helen Murray, the sum of £600 sterling, and in case of any of them predeceasing leaving issue, such issue shall succeed to the parent's share, but specially providing and declaring that there shall be paid to each of my said daughters, within six months after my death, the sum of £100 sterling, being part of the beforementioned £600, which provision of the balance of £500 to each, in favour of my said daughters

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shall be secured upon them in liferent, for their liferent use only, and the fee upon their children, and the interest accruing to them shall be purely alimentary, and shall not be affectable by their debts or deeds (farther than a right to divide among their said children, if any), or subject to the diligence of their creditors, nor shall the same be subject to the jus mariti of any husbands of my said daughters, or the right of administration of such husbands. (14th) . . . It is declared no legacy shall be payable till the party entitled thereto shall attain majority, but in the case of such as are in minority, it shall be lawful to my trustees and executors to apply the interest arising thereon to and towards their maintenance, and the share of any son or daughter who shall predecease (without leaving issue) before the term of payment arrives, shall revert to the estate; and it is also declared, that if my means and estate fall short of realising the foresaid provisions, then the sums so left to my five sons and five daughters shall suffer a proportional abatement. But, on the other hand, and if my means and estate should yield more than sufficient to meet the foregoing bequests, I direct my said trustees and executors to pay the residue equally to and among my said five sons and five daughters, to whom accordingly I bequeath the same, naming and hereby appointing them my residuary legatees: But such residue shall not be paid over to my said sons till they have all attained majority; and the shares falling to my said daughters shall be secured on them in liferent, and on their children in fee, and the interest accruing to the mothers shall be purely alimentary, and not affectable by their debts or deeds (farther than a right of apportionment among their children), or subject to the diligence of their creditors, nor shall the same be subject to the jus mariti of any husband of my said daughters.” The truster died on 6th Dec. 1860. The trustees accepted of the trust, and gave up an inventory of his personal estate, the amount of which was stated at £13, 305, 0s. 7d. The second parties in the case were a majority and quorum of the accepting and acting trustees. On 27th May 1862, Ann Ruddiman Murray, one of the daughters of Alexander Murray, was married to the Reverend George Grant, sometime of Aberdeen, afterwards clergyman in New Zealand, and went to New Zealand with her husband in the same year. Mrs Grant had attained majority prior to her marriage. In May 1869 Mr Grant, having given up his charge in New Zealand, embarked with his wife and their whole family, viz., three sons and a daughter, on board the sailing vessel “Matoaka,” at Lyttleton, New Zealand, bound for London, intending to return to Scotland. At this time Mr Grant was of the age of thirty-eight years, Mrs Grant was of the age of thirty-four years, and the four children were all in pupilarity, the eldest having been born on 1st February 1864. The ship “Matoaka” having never been spoken with or heard of after her departure from New Zealand, the parties were satisfied that Mr Grant and his wife and children were dead, and were agreed in stating as matter of fact that they had perished at sea. William Grant, the first party, brother of the said Mr Grant, was on 28th January 1870 decerned executor-dative qua one of the next of kin to his brother; and on 29th December 1871 he was decerned executor-dative qua one of the next of kin to the children of Mr Grant, conform to decrees of executry by the commissary of Aberdeenshire in his favour. The Rev. Mr Grant was survived by his father and by one brother and two sisters, besides his brother the said William Grant. The widow of Alexander Murray, the truster, was at this time still alive, and in the capacity of trustee was a party to this case. Three of the residuary legatees were paid by the second parties, prior to May 1870, £300 each to account of their shares of residue, and the second parties, in accounting with Mrs Grant, credited her with the interest of £300 of residue from 26th May 1866, in addition to the sum of £100, and interest on the sum of £500, referred to in the 12th purpose of the trust-deed. The following members of Alexander Murray's family, who survived the testator, predeceased Mrs Grant, viz., Alexander Murray, who died on 10th May 1862. James Murray, who died on 14th May 1862, and Elspet Murray, who died on 16th January 1863. These all died unmarried. In consequence of the presumed death of Mr and Mrs Grant and their children, questions arose between the parties as to the rights of the first party, as executor of Mr Grant and of his children, under the trust-disposition and settlement of the said Alexander Murray. Mr Grant himself had not contributed in any way to the funds claimed by his executor. The first party maintained that he was entitled to the amount of the provision by Alexander Murray under the 12th purpose, and to a share of the residue under the 14th purpose of his trust-disposition in favour of Mrs Grant and her children, in so far as not already paid, with the interest due thereon. The second parties maintained that the first party was neither entitled to the said provision, nor to a share of the residue under Mr Murray's settlement; first, because as they conceived the right of Mrs Grant's children was contingent on their survivance of their mother, it being provided in the said 14th trust-purpose that the share of any son or daughter of the testator who should predecease without leaving issue before the term of payment arrived, should revert to the estate, and that it was therefore incumbent on the first party to show as matter of fact or legal presumption that Mrs Grant was survived by one or more of her children. They further maintained that, even assuming that the said provision and share of residue vested in Mrs Grant's lifetime, it was necessary that the claimant should establish his right to the succession in one or other of the two characters in which he claims. No evidence existed as to the order of survivance of the different members of the family who perished. It was accordingly left to the Court to determine whether any and what conclusions could be deduced regarding the survivance of any of the said family from the circumstances of age, sex, and relationship above set forth, it being agreed that all matters of legal presumption, raised by the questions of law, should be disposed of by the Court in the same manner as if the first party had brought an action to constitute his claim against the trust-estate.

The following questions were accordingly submitted for the opinion and judgment of the Court:—

“1. Whether the provision and share of residue, liferented by the deceased Mrs Grant, under the 12th and 14th purposes of her father's trust-disposition and settlement, vested in her children in the lifetime of their mother?

2. If the said provision and share of residue vested as aforesaid, was the first party entitled to have it judicially declared, either (1) that he, the

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first party, along with his brothers and sisters, was the next of kin and heir in mobilibus of the said children; or (2) that the said Rev. Mr Grant survived his children, and was their next of kin and heir in mobilibus, and that the first party, along with his father, brother, and sisters, represented the said Mr Grant; and was it necessary, in order to entitle the first party to payment of said provision and share of residue, that one or other of these alternatives should be substantively affirmed by the Court?

3. If the said provision and share of residue did not vest in Mrs Grant's lifetime, was the first party entitled to have it judicially declared that the said children survived their mother, and thus acquired a vested interest in said succession?

4. Whether the first party was entitled to the amount of the provision under the 12th purpose, and of the share of residue under the 14th purpose, bequeathed to Mrs Grant and her children, in so far as not already paid, or to any part thereof, with the interest due thereon.”