Scottish Court of Session Decisions

By deed of trust dated 23d January 1832, and having reference to a last will and testament previously executed, the late Mrs Mary Hamilton Nisbet directed her executrix under the latter deed to transfer to certain parties named, as trustees “for behoof of my grandchildren Lady Harriet Matilda truce and Lady Lucy Grant, or the survivor in liferent, and to such of their children as may be in life at the death of the survivor equally among them, and failing children then to my own nearest heirs in fee,” the sum of £12,000, which by two subsequent codicils was increased to £20,000. The trust was created under the declaration that if one of her grand-daughters, Lady Harriet Matilda Bruce should succeed to certain entailed estates during the existence of the trust, then the trustees were to hold the fund for the sole use and behoof of her other grand-daughter, Lady Lucy Grant, and her children. Lady Harriet Matilda Bruce did not succeed to the entailed estate referred to. She died on 31st August 1857 without leaving issue. Lady Lucy Grant was married and had issue. She died on 4th September 1881, and the trust-fund aforesaid, amounting to £20,189, 8s. 11d., then fell, in terms of the deed of trust and relative codicils, to be divided amongst her children. Lady Lucy Grant was survived by five of her children, as well as by several grandchildren, the issue of two married daughters who had predeceased her. A question then arose whether under the terms of the deed of trust the children of the two daughters of Lady Lucy Grant who had predeceased her were entitled to any share of the £20,000. A Special Case was presented to the First Division, the first parties to which were the five surviving children of Lady Lucy Grant, the second parties the children of her two daughters who had predeceased her, and the third parties the trustees acting under the trust-deed.

The question submitted for the opinion and judgment of the Court was—“Whether the five parties of the first part, the children of the said Lady Lucy Grant who were alive at the date of her death, are entitled to the whole of the said trust-fund; or Whether the child of the said Mrs Anne Grant or Brooke, and the children of the said Mrs Lucy Grant or Feilding, as representing their respective mothers, are entitled to participate equally in the said fund along with the said five parties of the first part?”

Argued for the first parties—This is not a case in which the conditio si sine liberis could apply; if so, it would overturn the words of the deed—“Such of their children as may be in life at the death of the survivor.” Children as a class were thus not called to the succession, but only those who are alive at a certain time. This excluded the claim of the second parties. The parents here are not instituted, as they have failed to comply with the condition; how then can the children take as conditional institutes? To apply the conditio here would be to extend it further than it had yet been extended.

Authorities— Douglas' Exrs., Dec. 5, 1869, 7 Macph. 504; Gauld's Trustees v. Duncan, Mar. 20, 1877, 4 R. 691.

Argued for the second parties—The conditio si sine liberis applied. The parties claiming were in the direct line, and not the collateral. The testatrix stood in loco parentis to them, and there was no residue clause in the deed. This was in effect a family provision. The third parties' contention only carried the conditio one step further than it has hitherto been admitted.

Authorities— Wallace, 1807, M. “Clause” App. No. 6; Thomson's Trustees v. Robb, July 10, 1851, 13 D. 1326; Christie v. Patersons, July 5, 1822, 1 Sh. 543; Rhind's Trustees, Dec. 5, 1866, 5 Macph. 104; Haliday v. M'Callum, Nov. 9, 1869, 8 Macph. 112; Blair's Exrs. v. Taylor, Jan. 18, 1876, 3 R. 362; Gauld's Trustees, supra; Bogie's Trustees v. Christie, Jan. 26, 1882, 9 R. 453.