Scottish Court of Session Decisions

Admiral Brunswick Lowther Popham of Cardean, Perthshire, died on 6th February 1878, leaving a trust-disposition and settlement dated 15th March 1876 conveying his whole property (with certain exceptions not material to the present case) to trustees for the purposes therein specified. By this deed the testator left to his wife all the money which might be lying in bank at his death, or invested by himself subsequent to 9th March 1875, subject to payment of his debts. He left her also his books, furniture &c. The second purpose of the deed was as follows:—“I direct my trustees to pay all legacies which I may bequeath; but unless I otherwise expressly desire, no legacies left by me shall vest or be payable to the legatees till after the death of my said wife, who during her life shall derive the benefit of all interest or income therefrom.” In the following purposes of the deed he bequeathed to his widow a preferable legacy of £3000; to two grandnephews the sum of £9000 each, payable on their “reaching twenty-five,” the trustees having power to invest these sums and pay them the interest, and if need be a part of the principal, as they might deem expedient. The sixth purpose was—“As regards other legacies, I leave and bequeath the following, viz.—[ here followed a variety of legacies, including] to my niece Miss Catherine Pakenham the sum of £500 … And if there be residue enough, to each of Edward Thomas Shiffner and Bertie Shiffner, sons of the late Rev. Sir George Shiffner, Baronet, and brothers of my dear wife, the sum of £250.” There after he appointed his nephew Home John Parker and the Hon. Richard Wogan Talbot his residuary legatees.

By holograph codicil to this deed, dated 15th March 1876, Admiral Popham declared with regard to his widow that “she is to enjoy for life the interest of all my money, and to have power to will away three thousand pounds. This legacy is to have priority over all other legacies left by me to be paid after my dear wife's decease.” By another holograph codicil of same date he declared that “I further hereby will and declare that no legacy to whomsoever left by me shall be paid until after the death of my dear wife Frances Mary Popham.” By holograph memorandum endorsed on the trust-deed, of date 25th March 1876, he declared that “no legacy whatever left by me shall be payable until after the decease of my dear wife Frances Mary Popham”.

Admiral Popham died, survived by his wife, on 6th February 1878. Miss Pakenham died, unmarried and leaving a settlement, on 5th April 1878 survived by the Admiral's widow Mrs Frances Mary Shiffner or Popham, who died on 30th May 1881. In these circumstances a question arose as to whether the legacy of £500 bequeathed by Admiral Popham to Miss Pakenham had vested.

This Special Case was accordingly presented to the Court. The Admiral's trustees were the first parties; one of his residuary legatees who was alive at the date of the Special Case, together with the executors of the other, who had died between the date of Admiral Popham's death and that of this case, were the second parties; Miss Pakenham's executors, nominated by her last will and testament, were the third parties.

The first and second parties maintained that as the Admiral had declared in the second purpose of his trust-deed that there should be no vesting of any legacy bequeathed by him (“unless otherwise expressly desired”) till after the death of his widow, and as Miss Pakenham predeceased the Admiral's widow, the said legacy did not vest in her so as to pass to her executors, but lapsed and fell into residue. They argued that where the testator had himself fixed the period of vesting by the terms of his deed effect must be given to his declared intention in that respect, unless there was some clear declaration that the words employed were not to have their ordinary meaning and legal effect— Davidson's Trustees v. Davidson, &c., 15th July 1871, 9 Macph. 995. Further, the gift of £250 to the testator's brothers-in-law was against the view that there was any vesting in the legatees till after Mrs Popham's death.

The third parties maintained that on a sound construction of Admiral Popham's deed, particularly when read in the light of his relative holograph memorandum and codicils, the legacy did vest in Miss Pakenham by her survivance of the testator, payment only being postponed till the death of the Admiral's widow, and that the legacy therefore transmitted to them as her executors. They argued that all that the Admiral contemplated was that his wife's liferent should be intact. To effect this he declared that payment of the legacy should not take place till after her death. The words used, “vest or be payable,” were not contradictory one of the other, the word “payable” being only intended to be explanatory of the word “vest.” In effect he meant to say that the legacies should not “vest” in the sense of “be payable” till after her death. That construction being given effect to, the ordinary presumption of vesting a morte testatoris took effect— Jackson, &c. v. Macmillan &c., March 18, 1876, 3 R. 627.

The questions of law were as follows:—“Did the legacy of £500 bequeathed by Admiral Popham, in the sixth head of his trust-disposition and settlement, to Miss Pakenham, vest in Miss Pakenham prior to her death, and is it now payable to the third parties as her executors? or did the same lapse through her predecease of Mrs Frances Mary Shiffner or Popham, the testator's

Page: 596↓

widow, and become part of the residue of Admiral Popham's estate?”

At advising—