Scottish Court of Session Decisions

In common with some of your Lordships, I may regret that such was the rule so established, and I may think that the opposite decision would be the better. At anyrate, it is some consolation to know that what we cannot do has been done to some extent by a recent statute (37 and 38 Vict. cap. 37), but that statute does not apply here.

On these grounds I think we are bound to adhere to the Lord Ordinary's interlocutor.

Lord Deas—I have come to the same conclusion as your Lordship, but very unwillingly. As Counsel and Judge, I have considered many cases on this point subsequent to that of Watson, but I cannot say that I have ever heard doubts thrown on its authority. I confess that I am very glad to see that a Statute of 1874 (37 and 38 Vict. c. 37), now excludes some of the technical objections which have been found inconvenient in dealing with cases similar to this, but the statute is not applicable here, and I think we can do nothing but adhere.

Lord Mure concurred.

Lord Shand—If the point had been open, I should have been of opinion that the deed here in question was a good exercise of the power of apportionment, because, although no share is specially given to the representatives of the lady's son Alexander Campbell, who predeceased his mother, and in whom a share of the fund no doubt had vested, yet the fund has been divided amongst the whole parties really interested, whether as being themselves directly entitled to a share as objects of the power, or indirectly as representatives of their deceased brother Alexander. The same division could admittedly have been effectually made if a sum, it might be of small amount, had been left as Alexander's share to his representatives, and a corresponding reduction made on the sums given to each of the surviving sons. The pecuniary result would have been precisely the same if Mrs Campbell had allocated £200 as Alexander Campbell's share and fixed the amounts apportioned to each of her two surviving sons at £250 in place of £300 as fixed by the deed, because in that way each son would receive £50 as representing his late brother and £250 in his own right, being £300 in all, and the two daughters would have the same right to residue as the deed now gives them. This being so, I cannot help feeling that the pursuer's objection to the deed is founded more on the form which the deed has taken than the substance of the deed, or any true excess of power on the part of Mrs Campbell, and I think it is satisfactory that the statute of 1874 will obviate all future objections of this kind.

But, with your Lordships and the Lord Ordinary, I am of opinion that the question is concluded by the authority of the case of Watson v. Marjoribanks. In that case the lady had divided the fund amongst the children surviving her only, and these children were all parties, and were the only parties to the litigation. David Marjoribanks, who was the leading objector to the division, was the executor and beneficiary under the will of Charles his brother, to whom he maintained a special share should have been allocated. The Court held that in order to make an effectual appointment it was necessary to allocate a special share in favour of Charles, so that David, the survivor, should have the benefit of that particular share, and the same principle applied to the share of the other brother Edward, who had died intestate, and who was represented by his brothers and sisters. The argument maintained in support of the deed was the same as that here pleaded by the defenders, and the circumstances were substantially the came as occur in this case. There were no creditors parties to the litigation, and although creditors’ interests were mentioned in the argument, it ws nevertheless a acase the same as the present, in respect it was a litigation truly amongst the children and in reference to the division of the fund amongst the children. That case has been regarded as the leading authority in our law from 1837 downwards, and the main—perhaps the only substantial—point on which I have ever understood that the case of Crawcour v. Graham threw doubt on it had reference to the rights of creditors to come in and claim a share of the fund to be divided, rather than to such a question amongst surviving children as we have here.

Concurring as I do, then, in thinking that this case is ruled by the case of Watson v. Marjoribanks, I am of opinion that the interlocutor of the Lord Ordinary should be adhered to.