Scottish Court of Session Decisions

This was an action of multiplepoinding raised by John Cameron Craig, C.A., judicial factor on the trust-estate of John Craig, clothier in Edinburgh, who died on 20th July 1857, leaving a trust-disposition and settlement, of date 24th September 1855, the 5th clause of which was in the following terms:—“The free residue and remainder of my said subjects, means, and estate shall upon the death of my said spouse, or upon the death of the longest liver of the said two annuitants, whichever of these events shall last happen, but not earlier, be divided equally, share and share alike, among the children of my said two sisters, and if any child or children shall have died either before the date of these presents or before the said period of division, then their issue shall equally among them succeed to their parent's share. Declaring that in the case of females, whether children or the issue of children, the

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provision in their favonr shall be exclusive of the jus mariti or right of administration of any husbands whom they may have married or may marry, and as well in that case as in that of any of the other beneficiaries of the fee, even males, their provision shall be either paid to themselves upon their own receipt, or secured for their behoof by my said trustees and their aforesaids in such way as they in their sole discretion may think most fit for the interest of the beneficiaries.”

Mr and Mrs Sloane and certain other claimants maintained that the period of vesting of the residue under this clause was a morte testatoris, while the contention of the other parties was that the residue did not vest until the death of the liferentrix and the last of the annuitants, whichever event last occurred.

The Lord Ordinary on 18th November 1875 pronounced this interlocutor:—

“Finds that the residuary bequest did not become vested in all or any of the residuary legatees till the death of the last survivor of the annuitants on 12th October 1873; and further, that as the testator's widow had predeceased that event, the same then became vested: Appoints the cause to be enrolled that this finding may be applied to the claims of parties:.… Finds the claimants Mr and Mrs Sloane, the claimants Miss Jane Buchanan and others, and the claimants John Craig M'Intyre and another, whose contention as to the period of vesting has been overruled, liable to the other claimants as a class in the expenses of discussing the question now decided; modifies these expenses to the sum of nine guineas, and decerns.

Note.—Parties desired that the question as to the period of vesting should be taken up and decided in the first instance, and this course has accordingly been followed.

The clause of the truster's settlement upon which the decision of this question depends is that in which the fifth purpose of the deed is set forth. The meaning of this clause appears to the Lord Ordinary to be plain. That meaning is not controlled, as the Lord Ordinary thinks, by any words, expressions, or provisions to be found elsewhere in the deed, and consequently he has without difficulty adopted the conclusion to which effect has been given by the foregoing interlocutor.…

The clause in question directs that ‘the free residue and remainder of my said subjects, means, and estate shall upon the death of my said spouse, or upon the death of the longest liver of the said two annuitants, whichever of these events shall last happen, but not earlier, be divided equally, share and share alike, among the children of my said sisters; and if any child or children shall have died either before the date of these presents or before the said period of division, then their issue shall equally among them succeed to their parent's share.’ Thus, sisters' children alive at the appointed period of division, and the issue, if any, of such children as predeceased that period, form the component parts of the class of residuary legatees. There are no other members of that class nominated by the truster; and certainly there is nothing which suggests that issue of predeceasing children are to be excluded that other parties deriving right from the parents of such issue may be introduced. And yet such would be the effect of so reading the clause as to hold that there was vesting a morte testatoris. Every sister's child would by that interpretation become at the death of the testator a residuary legatee, and as a consequence, though she might die before the period of division, leaving issue, such issue could take nothing under the conditional institution provided in the clause of bequest. A reading which leads to such a result cannot, the Lord Ordinary thinks, be the true reading, because it operates as a defeasance of a provision plainly expressed, and forming an integral part of the scheme of the truster's settlement.

The expenses of the discussion of the question now decided have been allowed to the claimants successful in the controversy. But these claimants on the present occasion must be regarded as a class, and accordingly the expenses which have been given have been awarded to them as such. Counsel for each of the several sets of claimants were instructed, but this was more than was required, and the extra cost thus incurred was not a burden which, in the opinion of the Lord Ordinary, ought to be cast upon those who have been unsuccessful in this part of the litigation.”

Mr and Mrs Sloane and others reclaimed, and argued that the vesting took place a morte testatoris.

Authorities— Foulis, Feb. 3, 1857, 19 D. 362; Wallace, Jan. 28, 1807, M. Appx. voce Clause 6; Majoribanks v. Brockie, Feb. 18, 1836, 14 S. 521; Maxwell v. Wylie, May 25, 1837, 15 S. 1005; Forbes v. Luckie, Jan. 26, 1838, 16 S. 374.

At advising—