Scottish Court of Session Decisions

Robertson Gillies, silk mercer, George Street, Edinburgh, died on the 12th October 1871 leaving a trust-disposition and settlement, dated 26th January and recorded in the Books of Council and Session 16th October 1871, in which he conveyed to James Reid and others, as trustees, his whole estate for certain purposes, which, shortly stated, were-1st, For payment of his debts, funeral expenses, and the expenses of the trust; 2d, for payment of an annuity and certain other provisions to his widow; 3d, for payment of various legacies and annuities to relatives and friends of the truster. By the 4th purpose he directed the capital of the residue of his estate to be held by his trustees for the purpose of being divided among the issue of his children per stirpes, the respective shares to be paid over as the issue of the said children respectively arrived at the age of twenty-one. He further directed an allowance to be made from the income of the said residue to his children Thomas James Gillies and Mary Margaret Gillies, during their respective lives, the remainder of the income of the said residue to be accumulated along with the capital and applied in the same manner as the capital. He further imposed on his trustees powers to make, in their discretion, certain advances from the capital of the said residue to his children. The said trust-disposition also contained the following declaration:—“And I declare that if any of my said children shall repudiate the provisions hereby made for and left to them, the child or children so repudiating the same, and the issue of such child or children, shall forfeit and lose all right and interest whatever under these presents, and in the estates hereby conveyed; and the said provisions hereby made for and left to the said child or children so repudiating, and his, her, or their issue, shall pass entirely to and be held exclusively for my other child or children abiding by or not repudiating these presents, and their issue, in the same manner and to the same effect as if the said provisions also had been made for and left to the said child or children abiding by or not repudiating these presents, and their issue, alone.” The deceased was survived by his widow Mrs Sarah Gillespie or Gillies, and by two children, both of whom were in minority at the time of his death, viz., a son, Thomas James Gillies (who survived his father only about a month), and a daughter, Miss Mary Margaret Gillies. His estate was entirely moveable. There was no marriage-contract between the deceased and his wife, and on her husband's death the latter claimed her legal rights, repudiating the provisions made for her in the trust-disposition, and received from the trustees one-third of her husband's free moveable estate as jus relictœ. The daughter, Miss Mary Margaret Gullies, attained majority in June 1880, and thereupon intimated her intention to repudiate the provision of the deed and resort to her legal rights. In these circumstances questions arose as to whether the trustees were entitled to part with the whole or any part of the residue of the trust-estate to the daughter and widow of the truster, who made a joint claim for the whole thereof. They had settled between themselves in what proportions they should divide the same, and had agreed to give the trustees a discharge for the whole residue. The daughter maintained that she was entitled to repudiate her father's settlement and to claim her legal rights, which consisted of a right either to the whole of the legitim fund due from her father's estate, in view that her brother must be considered as having accepted the provisions in his father's settlement, or one-half of the said fund, in the view that the right to legitim vested in him. She further maintained that intestacy had occurred with regard to the free residue of the dead's part of her father's succession after providing for the legacies and annuities mentioned in the third purpose of the settlement, and that she was entitled now to payment of the whole, or otherwise to payment of one-half, of the said free residue in her own right, and to two-thirds of the other half as next-of-kin of her deceased brother, the remaining one-third falling to his mother in terms of the provisions of the Intestate Moveable Succession (Scotland) Act 1855. The widow maintained that intestacy having supervened as regards the residue of the dead's part, one-half of the said residue vested in her said son, to one-third whereof she was entitled in respect of the provisions of sec. 4 of that Act. The mother and daughter together main. tained that they were entitled to any share of his father's estate that might be said to have vested in the deceased son. As legitim or otherwise they claimed, as above, the share destined to his issue as intestate succession of the said Robertson Gillies. On the other hand the trustees maintained “that they are not entitled or bound to part with the residue of the said trust-estate, at all events not without judicial authority; they maintain, inter alia, that the forfeiture of the share originally destined to any issue that may be born to the said Mary Margaret Gillies in favour of the issue of other children of the testator having failed, they are bound in the due administration of the trust to retain at all events the unexhausted portion of the dead's part for behoof of any children that may be born to the said Mary Margaret Gillies.”

In these circumstances, then, the parties agreed to submit this Special Case to the Court, the widow and daughter appearing as the first parties, and the trustees as the second parties in the case. The questions which they proposed for the opinion and judgment of the Court were—“(1) Are the parties of the first part entitled to have now paid over to them the whole remaining residue of the estate of the deceased Robertson Gillies? (2) Are the parties of the second part entitled or bound to retain the whole or any part of the residue of the said estate for behoof of any issue that may be born to the said Mary Margaret Gallies? and if a part, what part?”

Argued for the first parties—The truster contemplating

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the contingency of his children's repudiation, made a special provision in regard thereof, which falls to be construed strictly. In point of fact the contingency occurred, and therefore, on a sound construction of the clause of forfeiture, intestacy must be held to have followed.

Authorities— M'Murray v. Govan and Others. 27th February 1852, 14 D. 1048; Blackwood v. Blackwood's Trustees, 11th June 1833, 11 Sh. 699.

Argued for the second parties—In spite of the clause of forfeiture, the leading provisions of the will, as indicating the main object of the testator, fall to be given effect to. As regards the clause of forfeiture, a came improvisus qua that clause had occurred, there being no issue born to the daughter, and therefore it was a nullity, and must be treated as such.

Authorities—Downie, & c., 10th June 1879, 6 R. 1013; Smith and Another, June 13, 1877, 4 R. 876; Fisher v. Dickson, 24th November 1831, 10 Sh. 55, and 1st July 1833, 6 W. & S. H. of L. Reps. 431; Wilson v. Gibson, 30th June 1840, 2 D. 1236, 15 F.C. 1330; Special Case—Lindsay's Trustees, 14th December 1880, 18 Scot. Law Rep. 199.