Scottish Court of Session Decisions

Charles Campbell, proprietor of the estate of Leckuary, Argyllshire, died in 1808, leaving a trust-disposition and settlement by which he conveyed his whole estate, heritable and moveable, to trustees. The fourth and fifth purposes of this deed were as follows:—“ Fourthly, As it is my wish and desire that my estate of Leckuary remain in my family, I direct my said trustees, and survivor of them, in the event of my having a son procreated of my present marriage who shall attain to the age of twenty-five years complete, and be in every respect capable of managing his own affairs, to dispone, convey, and make over to him, at his attaining said age, the foresaid estate of Leckuary, burdened and qualified, however, in such a manner as it shall not be in the power of my son to sell or dispose of the said estate during his life, but he shall only be entitled to the liferent thereof; and failing of him by decease without leaving lawful issue of his body, that then the said estate shall return to my eldest daughter, if in life, and failing thereof to her children, whom failing to my second daughter and her heirs; and as the said estate is burdened with the payment of £50 sterling yearly to Mrs Young, my aunt, I appoint the surplus rents to be applied for the behoof of my whole family until the succession to my said estate opens up to my son or daughter, as before and after mentioned. Fifthly, In the event of my having no son procreated of my present marriage, I direct and appoint the said estate of Leckuary to be made over in the foresaid manner, and under the foresaid burdens and qualifications, to my eldest daughter upon attaining the age of twenty-five years or being lawfully married, whichever of these events shall first happen; and failing her by decease, and without leaving lawful issue of her body, then I direct the same to be made over to her immediate younger sister, under the said burdens and qualifications; and failing her also by decease without leaving heirs of her body, then to my youngest daughter and the heirs of her body.” Mr Campbell left no son, but he left four daughters, all of whom were married. On the eldest, Isabella Anne Campbell, afterwards wife of Major Neil Campbell, attaining twenty-five, the trustees gave her possession of Leckuary. After the marriage to Major Campbell, her mother, the last surviving trustee of Mr Campbell, on the footing that she was entitled under the deed to the fee of Leckuary, disponed it to her and her heirs and assignees whomsoever, heritably and irredeemably. This disposition contained a clause—“Declaring always, as it is hereby expressly declared, that this disposition is burdened and qualified in terms of the before recited trust-disposition and deed of settlement of the said Charles Campbell.” In order to have her right to the fee of Leckuary judicially declared, Mrs Isabella Anne Campbell then raised an action of declarator, calling as defenders her sisters, and her own and their children, to have it found that there being no proper substitution of anyone to her, but a mere direction to convey the estate to others in the event of her predeceasing without issue the term appointed for conveyance to her, she was fee-simple proprietor of Leckuary. In this action (30th May 1834, 5 D. 1083) the Court found that she had a liferent only of the estate. Thereafter her eldest son Colin Ward Campbell having attained majority, he and his mother raised against her younger children, and the other daughters of the truster and their children, an action to have it declared that as liferentrix and fiar of Leckuary they were entitled to dispose of the estate onerously or gratuitously. In this action, which is reported 3d December 1852, 15 D. 173, defences were lodged by the other daughters, and the Court repelled the pursuers' plea and found them not entitled to decree. Their Lordships held that the fee of the estate vested in the issue of Mrs Isabella Anne on their surviving their mother, but reserved the question whether the fee passed to the eldest son or to the whole children equally. At Whitsunday 1871 Leckuary was sold to Mr Malcolm of Poltalloch for £7400. Mrs Isabella Anne Campbell, Colin Ward Campbell, her eldest son, her younger children, through their factor and commissioner, they being abroad, and the husband of one of them, a daughter who had married, conveyed the estate to the purchaser Mr Malcolm of Poltalloch, under real burden of payment of £4000 to Mrs Campbell, Colin Ward Campbell, and the husband of Mrs Campbell's married daughter, who was factor and commissioner for those younger children who were abroad, in trust for behoof of “Mrs Isabella Anne Campbell in liferent, and her children

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in fee, according to their respective rights and interests, and reserving to them all their rights and interests respectively as between themselves, the said interest only, at the rate of £4 per centum per annum, of the said sum of £4000 to be paid to the said Mrs Isabella Anne Campbell on her own receipt during her lifetime.” The balance (£3400) was invested in guaranteed stocks and debentures in the same terms.

On 27th November the liferentrix died, and the question arose which had been reserved in the second of the cases above referred to. Colin Ward Campbell, as heir of his mother, claimed the whole price of Leckuary, invested as above described. The younger children maintained that the price fell to be equally divided among the whole children of their mother, the liferentrix.

This case was then presented, Colin Ward Campbell being the first party, and his younger brothers and sisters second parties.

Argued for first party—The testator had declared his intention that the estate should remain in his family. The presumption was that he intended it to descend in the ordinary course in which heritage descends. The nature of the estate as purely heritable aided this intention. The testator used four expressions—“lawful issue of her body,” “heirs of her body,” “children,” and “heirs’—synonymously. The last mentioned indicated plainly the meaning to be given to the first-mentioned term. Though the point had been reserved at a previous stage of the case, Lord Rutherfurd (the Lord Ordinary) and Lord Wood had expressed opinions in the first party's favour.

Argued for second party—The natural and ordinary meaning of the words “lawful issue of her body” must be given them, the more so as the testator put a gloss upon them by calling them “children.”—Erskine, iii. 8, 48; Herris, 26th Nov. 1806, Hume 528; Waddell v. Pollock, 19th June 1828, 6 Shaw 999; Hibble v. ‘Donald, 16th Feb. 1832, 10 Shaw 341.