Scottish Court of Session Decisions

James Brown, M.D., of Aberdeen, died in Aberdeen in 1823 leaving a last will and codicil by which he appointed his widow and one of his brothers and a Dr John Brown of Aberdeen to be his executors. After directing them to lend out such sums as would provide certain annuities to his widow and certain relatives, he directed them (fourth) to pay to each of his brothers Thomas and Alexander Brown, and to Dr John Brown above referred to, a sum of twenty guineas, payable'at the first term of Whitsunday or Martinmas after his decease; (sixthly) … “to my brothers Thomas and Alexander Brown I bequeath the sum of £500 sterling each, payable at the first term of Whitsunday and Martinmas after the decease of my said spouse.” The residuary clause of the testament was as follows:—“I appoint the residue and remainder of my estate of every description, at the death of my said spouse, and including the principal sum laid out for an annuity to her, and any legacy that may have lapsed by the legatees predeceasing her, to be equally divided among the children then alive of my brothers and sisters equally per capita, but always secluding the eldest son of each family who may have succeeded to any heritable property of his father's, and any of my said nephews who may have situations in India.”

George Brown alone accepted the office of executor, and entered on the management of the estate. He died in 1838, and two other persons were decerned executors-dative in his room. They having also died, James Yeats, advocate in Aberdeen, was appointed judicial factor ou the estate. The testator's widow died in May 1879. She was predeceased by all the other annuitants, and also by Thomas and Alexander Brown. By her death the residue of the estate became divisible among the nephews and nieces of the testator alive at that date equally per capita in terms of the will. There was then alive four nephews and nieces of the testator. Several other nephews and nieces had predeceased the widow leaving children. Certain questions having arisen as to the distribution of the estate, Mr Yeats, the judicial factor, raised this multiplepoinding for the purpose of having them determined. The only questions debated in the Inner House were— First, Whether the legacies to the testator's brothers Thomas and Alexander Brown had vested a morte testatoris, or had lapsed by reason of their predecease of the widow, in virtue of the words in the will, “any legacy that may have lapsed by the legatee's predeceasing” the widow? And Second, Whether the children of George Brown, a nephew, who was an only child of one of the testator's brothers, and as such succeeded to heritage from his father's estate, were excluded from participating as in his right by virtue of the words in the will, “but always secluding the eldest son of each family who may have succeeded to any heritable property of his father's?”

On 16th July 1880 the Lord Ordinary pronounced this interlocutor:—“Finds that the legacies to Thomas and Alexander Brown lapsed by their having predeceased the widow of the testator: Finds that the residue is divisible in equal shares among the nephews and nieces of the testator who survived the testator's widow, and the children of such nephews and nieces as predeceased the testator's widow, such children taking their parents' shares, but subject to the qualification that the children of George Brown, nephew of the testator, are not entitled to any share, in respect that the said George Brown succeeded to heritage from his father.” … .

He added this note:—“(1) The first question is, whether the legacies to Thomas and Alexander Brown vested a morte testatoris? If this were to be determined by the clause of bequest alone, it is not doubtful that they vested at that date, inasmuch as there is only a postponement of payment till the death of the widow; but a difficulty arises in consequence of the residuary clause. The testator directs that the residue, and ‘any legacy which may have lapsed by the legatee's predeceasing’ the widow, shall be disposed of in a certain way. These words can apply to no other legacies than those which the testator left to his brothers, and the Lord Ordinary is inclined to think that they show that the testator not only postponed payment but postponed vesting till the widow's death… . .

“(3) George Brown, a nephew of the truster, succeeded to heritable property from his father. He was therefore excluded from any share, and the conclusion, in the opinion of the Lord Ordinary, extends to his descendants, who merely come in his place. If he could not take, neither, it is thought, could they.” … .

Mrs Sarah Thomas or Taylor, who claimed as executrix of both Thomas and Alexander Brown by a series of transmissions under English law, reclaimed. A reclaiming-note was also lodged for the Rev. James Hawes, committee of the person and estate of the Rev. Alexander Paton, one of the testator's nephews, who was insane.

Argued for Mrs Thomas or Taylor—The words “any legacy that may have lapsed by the legatee's predeceasing the widow” Were quite general, and were intended to provide for the possibility that by the operation of law some legacy might be held to lapse. The testator did not wish any legacy to lapse by predecease of the widow, or he would have directed that such lapsing should take place. Vesting a morte testatoris was always presumed. It clearly took effect under the bequest in this case if read alone, and the gift thus made was not derogated from by mere general words in a residuary clause.

Argued for the other claimants—Effect must if possible be given to every word of a deed. There was no other legacy to which the words in question could apply, the other legacies being to be paid at the first term after the testator's death. The meaning attached to these words by the Lord

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Ordinary must therefore be held to be the meaning of the deed.

On the other point the children of George Brown argued, that the words “eldest son” being a relative term implying the existence of several children, the words excluding an eldest son of a nephew or niece of the testator being heir in heritage were intended for the benefit of younger children, and had no application where there was an only child.