Scottish Court of Session Decisions

George Buchanan died in 1848 leaving a trust-disposition and settlement whereby he conveyed to his brothers Thomas and John Buchanan as trustees his whole estate. He had three brothers Thomas, John, and James, and one sister Mrs Pollok Morris. All of these survived him. By his settlement he directed his trustees, with regard to the free residue of his estate, to invest one-third on undoubted security, and to pay the annual income thereof to his brother James during his life, but for the benefit of his wife and family allenarly, declaring that the income should not be attachable for his brother's debts or deeds, and should not be alienable by him. Another third of the free residue he in like manner directed his trustees to invest under the same declarations and provisions for his brother John during his life, but for the benefit of his wife and family allenarly, and with the same declaration as in the case of James. The remaining third he directed his trustees to pay to his brother Thomas if unmarried at the date of his (the testator's) death, or if he were then married his third was to be treated as the other two-thirds.

The fifth and sixth purposes of the settlement were as follows:— “Fifth, That on the death of any of my said brothers leaving a widow, my said trustees shall be entitled, and they are hereby authorised and empowered, to pay such widow the one-fourth of the free yearly income or produce of the third share of the said residue, and that yearly or half yearly as may be most convenient; or if it shall be deemed preferable by my said trustees, they shall be entitled to purchase an annuity in any respectable Insurance Office for her behoof, equal in amount to one-fourth part of the free yearly income or produce of the third share of the said residue, and which provision shall be strictly alimentary for behoof of such widow, and not attachable for her debts, nor liable for her deeds, nor those of any husband she may afterwards marry, whose jus mariti is expressly excluded, her own receipt being at all times a sufficient exoneration to my said trustees. Sixth, That my said trustees shall hold and manage the remainder of the third share falling to the child or children of each of my brothers, after deduction of the provision for the widow under the immediate preceding purpose of the trust, for behoof of such child or children equally, and share and share alike, and shall apply such part of the interest thereof as shall be necessary for their behoof from the time of their father's decease; and as it is my earnest desire, in consideration of the vicissitudes to which persons engaged in business are exposed, that such share of my means and estate should, as far as possible, be secured as a permanent provision for the families of my said brothers, so I hereby authorise and empower my said trustees, and survivor of them, and the trustees to be nominated and subsumed as aforesaid, if considered advisable so to do, to create and constitute a separate trust or trusts for the management and application of the share of the funds and estate falling to each family, with power to the trustees under said trust or trusts to pay the interests or income of the share of the funds and estate to the child or children of each of my said brothers, yearly or half yearly, as shall be found most convenient, and the whole of such payments being held and considered as strictly alimentary, and not assignable by them, nor attachable for their debts, nor liable for their deeds, nor shall the share of any female fall under the jus mariti of any husband she may marry, but her own receipt shall at all times be sufficient to the said trustees, and the said trustees paying over the fee of the said shares, on the death of the liferenters, to the lawful issue whomsoever of the said child or children of my said brothers respectively, equally, and share and share alike: But declaring that failing the child or children of any of my brothers without leaving lawful issue, the share of such child or children shall be paid and applied for behoof of the child or children surviving of my other brothers, each family succeeding equally; and failing the whole children of my said brothers and their issue, the children or child, if only one, of my sister Mrs Pollok Morris, and their issue, shall then succeed to the said funds, means, and estate: And further, declaring that in every instance the lawful issue of any party intended to derive benefit under the foregoing provisions shall succeed to such share thereof as would have fallen to their deceased parent.”

Thomas Buchanan was unmarried at his brother's death, and therefore received payment of his one-third share.

James and John were both married and had issue.

Page: 667↓

Thomas and John accepted office as trustees, and proceeded to carry out the purposes of the settlement, In pursuance of the authority given them to create, if they thought fit, a separate trust or trusts for the management of the share falling to each family, they constituted a separate trust for the family of James, the trustees being James Buchanan himself and his son James Linberg Buchanan, who discharged the testamentary trustees of the one-third of residue, amounting to £18,695, belonging to that family.

James Buchanan died in 1878 survived by his wife, and by three children, James Linberg Buchanan, Mrs Muchall-Viebrook, and Mrs Von Mosch. After his death his widow received one-fourth of the income of the third share falling to his family, the remaining income being divided by the trustees under the separate trust among his three children in terms of the settlement of George Buchanan. James Linberg Buchanan assumed into the separate trust William Young and Thomas Ryburn Buchanan, M.P.

In 1882 James Linberg Buchanan died unmarried, and the share liferented by him of the one-third of residue falling to his father's family amounted to £6231, and the present Special Case related to the disposal thereof. He left a will which, he being only a liferenter, was effectual only to carry the accrued portion of the current half-year's income. His sisters Mrs Muchall-Viebrook and Mrs Von Mosch claimed that the liferent of this sum of £6231, the share liferented by their brother, accresced to them under George Buchanan's settlement, and the fee of it to their issue.

Mrs Muchall-Viebrook had one child. Mrs Von Mosch had three children. All these children maintained that the fee of the sum accresced to them at once without being subject to the liferent of their parents. The child of Mrs Muchall-Viebrook maintained that the sum fell to be divided per stirpes. The children of Mrs Von Mosch maintained that it fell to be divided per capita.

In the present Special Case William Young and T. R. Buchanan (trustees under the trust for James Buchanan's family) were first parties; Mrs Muchall-Viebrook and Mrs Von Mosch were second parties; and their children were third parties. These children being all in minority, a curator ad litem was, when the case was in the Single Bills, appointed to the child of Mrs Muchall-Viebrook, and a separate curator ad litem to the children of Mrs Von Mosch.

The questions for decision between the second and third parties were—“(1) Does the liferent of the share of said one-third of residue enjoyed (subject to his mother's provision) by the said James Henry Linberg Buchanan, or any portion thereof, accresce to his two sisters, the second parties hereto, and the fee thereof to their respective issue, in the same manner and subject to the same conditions as the second parties' original shares of said one-third of residue? Or (2) Does said liferent fall at once to the issue of the surviving children of the testator's brother James Buchanan, the third parties hereto, without being subject to the liferent of their parents, and is the division of the said fee among the said third parties per stirpes or per capita.”

Claims were, however, made to the share of James Linberg Buchanan, constituting the subject-matter of the Case by the children, seven in number, of John Buchanan, and by the children of certain of them who were married and had issue. John Buchanan's children were the fourth parties to the Case, and the children of those of them who were married and had children were the fifth parties. A curator ad litem was appointed to them—they being all in minority—when the case was in the Single Bills.

The fourth and fifth parties both maintained that in consequence of the death of James Linberg Buchanan, one of the children of James Buchanan, his share, on a sound construction of George Buchanan's settlement, passed to the family of John Buchanan, under the words “failing the child or children of any of my brothers without leaving lawful issue, the share of such child or children shall be paid and applied for behoof of the child or children of my other brothers.” The fourth parties maintained that they were entitled to the fee of the share of James Linberg Buchanan under these words. The fifth parties maintained that they were entitled to the fee equally per stirpes, subject to the liferent of their parents, the fourth parties.

The next-of-kin of George Buchanan maintained that the sum in question had not been effectually disposed of by his settlement and fell into intestacy. They were the sixth parties.

The widow of James Buchanan was the seventh party, and maintained that her liferent provision from the share of residue falling into her husband's family was not affected by the death of her son James Linberg Buchanan.

The questions of law other than those given above were—“(3) Does said liferent fall to the children of the testator's brother John Buchanan, the fourth parties hereto, and the fee to their respective issue represented by the fifth parties hereto, in the same manner and subject to the same conditions as in the case of the original shares of their one-third of residue enjoyed by the fourth parties? Or (4) Are the fourth parties entitled at once to the fee of the said share of residue liferented by the said James Henry Linberg Buchanan? Or (5) Has the fee of said share fallen into intestacy, and is the same now payable to the sixth parties, being the representatives of the testator George Buchanan's next-of-kin? (6) Is the provision enjoyed by Mrs C. W. Buchanan, the seventh parties hereto, from the said third share of residue in any way affected by the death of the said James Henry Linberg Buchanan?”

Argued for second parties—(1) The intention of the testator was that the liferent share of one of his brother's children who predeceased the others without issue should go to these others, and not that the fee of it should immediately descend to their children. The families were to take “equally.” This intention would here be carried out by construing the words of the settlement according to the ordinary rules of law, since the case was one to which the doctrine of accretion was applicable. The children of each family were treated as a class. Accretion was a quœstio voluntatis. (2) It was clear that the family of John Buchanan could not succeed to James Linberg Buchanan's share while any children of the family of James Buchanan were in existence.

Page: 668↓

Authorities on question of accretion—Stair, iii. 8, 27; M'Laren on Wills and Succession, i. 675–9 (Survivorship); Paterson, June 4, 1741, M. 8070; Torrie v. Munsie, May 31, 1832, 10 Sh. 597; Robertson v. M'Bean, Dec. 10, 1819, Hume 273; Tulloch v. Welsh, Nov. 23, 1838, 1 D. 94; Carleton v. Thomson, July 30, 1867, 5 Macph. (H. of L.) 151; Barber v. Findlater, 13 Sh. 422.

Argued for curator ad litem, for child of Mrs Muchall-Viebrook (third party)— [On the question with John Buchanan's family the third parties adopted the second parties' argument]—(l) On the question of accretion—There were words in this will which were fatal to the application of the doctrine of accretion to survivors of a class. The words “share and share alike” which were found in this deed had always been held to import a several and not a joint gift—Stair, ut supra, Torrie v. Munsie, supra; Rose, M. 8101. (2) As to the question with the other third parties (children of Mrs Von Mosch)—The succession ought to be per stirpes. That was the conception of the whole settlement, in which the testator regarded the interest of families rather than division per capita.

Argued for curator ad litem for other third parties on the question of the manner of division — [Adopting the argument of the other third parties as against the second and fourth parties]—The general presumption is that where there is a gift to a class equally among them, share and share alike, the division is per capita— Macdougall, Feb. 6, 1866, 4 Macph. 372. No doubt that case was afterwards reversed on the construction of the whole deed, but the general proposition was untouched—6 Macph. (H. of L.) 18.

Other authorities— Johnstone v. Grant, May 22, 1810; M'Courtie v. Blackie, Jan. 15, 1812, Hume 270; Bogie's Trustees, Jan. 26, 1882, 9 R. 453.

Argued for fourth parties—The condition which according to the settlement was to open the succession to John Buchanan's family had been purified. James Linberg Buchanan, who was a “child of one of my brothers,” had died without issue, and his share was therefore destined to the “children of my other brothers.” The words “each family succeeding equally” would have had a meaning if the testator's brother Thomas had left issue. They would have shared with John's children.

The curator ad litem for the fifth parties adopted the fourth parties' argument that the share in question was destined to John Buchanan's family, but argued that the “share” of a child in the position of James Linberg Buchanan was a liferent share only, and that the fourth parties in succeeding thereto could therefore only take a liferent, leaving their children the fee.

No argument was offered for the sixth parties.

The seventh question was not argued.

At advising—