Scottish Court of Session Decisions

Mrs Christian Abercrombie or Chivas died in Aberdeen in November 1878, leaving a trust-disposition and settlement with eighteen codicils thereto, which latter were dated at various times between July 1872 and April 1877. The trust-disposition and settlement had for its purposes payment of debts and of legacies therein mentioned and to be mentioned by separate writings under her hand, the gift of a liferent to certain beneficiaries, and disposal of residue. Among the codicils was one of date March 16, 1875, whereby the testatrix, on the narrative of the settlement and preceding codicils, and of her desire to make certain bequests “should there be a sufficiency of funds after meeting the whole of the gifts, legacies, and provisions” already bequeathed, directed her executor in that event, “out of the residue of my said estate, to make payment of a legacy of £100 sterling to Miss Jane or Jeanie Adam,” and also to invest a sum sufficient to yield certain small annuities to the poor of certain parishes named. Thereafter she left other legacies by codicils, dated in December

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1875 and March 1876, and on January 2, 1877, executed another codicil, in which she directed her trustee, “after paying and making provision for the whole legacies, bequests, and annuities” directed in the settlement and previous codicils “executed by me prior to the date hereof, to set apart and invest from the free residue thereafter remaining of my whole means and estate” a sum of £1000 in favour of Miss Rachel M'Leod. On February 27, 1877, and April 23, 1877, she executed two other codicils, by which various persons were favoured, and in particular by the first—that of February 1877—she left “an additional sum of” £400 to Miss Jeanie Adam. The estate having proved insufficient to meet the whole legacies, and doubts being felt as to the order of preference of the various legacies, a multiple-poinding was raised by the trustee, and claims were lodged by the legatees above described and others. After hearing parties, the Lord Ordinary ( Lord Rutherfurd-Clark) pronounced an interlocutor finding the whole legacies contained in the settlement and codicils entitled to be ranked pari passu, except the legacies of March 16, 1875, January 2, 1877, and February 23, 1877, above quoted, which legacies he found ought to be postponed to the whole other legacies left by the testatrix. These three legacies he found entitled to be ranked in the following order—First and pari passu, those in the codicil of March 16, 1875, together with the legacy of £400 to Miss Adam, and thereafter, after satisfaction of these legacies, the legacy of £1000 to Miss M'Leod contained in the codicil of January 2, 1877.

Miss M'Leod reclaimed, and argued—By “residue” in the codicil of January 2, 1877, under which the claimant was favoured, was only meant the remainder after paying legacies “prior to the date hereof.” It was the fund “thereafter remaining” after paying the legacies. It was a question of intention, and the Lord Ordinary was wrong in holding that the testatrix meant general residue, thereby placing Miss M'Leod's legacy in a less favourable situation than those of later date. The word “additional” in the legacy of £400 to Miss Adam had not the effect of making that legacy like her previous legacy of £100 preferable to the reclaimer's legacy of £1000. But further, the reclaimer ought to be ranked not only pari passu with, but preferably to, the legacies of later date. Hers was a demonstrative legacy out of a marked-out fund—the remainder after paying legacies prior to its date. That made it preferable to those of February and April 1877, to which the Lord Ordinary had postponed it— 2 White and Tudor's Leading Cases, 244.

Argued for Miss Adam—The legacy of £400 was “in addition to” that of £100 by a codicil prior to the date of, and admittedly preferable to, that of Miss M'Leod. In such a case the added gift is, in the absence of intention to the contrary, to be taken with the conditions of, and in the same order with, that to which it is added. The £400 legacy was therefore preferable to that of Miss M'Leod—Roper on Legacies, 4th edit. 873; and cases of Leacroft, 1 Vesey Jun. 279, and Crowder, 2 Vesey Jun. 449, there referred to.

At advising—