Scottish Court of Session Decisions

Henry Taylor died in 1873 leaving a trust-disposition and settlement whereby he conveyed his whole property to trustees for certain purposes. He was survived by five children — William, Patrick, Agnes (Mrs Miller), Joanna, and Jane (Mrs Primrose). He was predeceased by a son named Henry, who left three children, and by a daughter named Mary (Mrs Hendry), who left two children. The eighth purpose of Mr Taylor's settlement (the earlier purposes of which provided for Joanna and Jane and Mrs Hendry's children) provided—“I direct my said trustees to divide the whole residue of my estate into four equal shares, and as soon as convenient after my decease to pay one of said shares to each of William Taylor and Patrick Taylor, both grain merchants in Glasgow, my sons, and to hold, apply, and pay the remaining two shares thereof as follows, viz., to hold one share for behoof of the children of my deceased son Henry, equally among them, and to pay the same, share and share alike, when they respectively attain the age of twenty-one years or are married, whichever of these events shall first happen, the survivors succeeding and being entitled equally among them to the shares of any child or children of my said son predeceasing the foresaid terms of payment of their share, and the shares of daughters being paid to them always exclusive of the jus mariti and right of administration of their husbands; and the remaining share of said residue my said trustees shall hold for the liferent alimentary use of Agnes Taylor, my daughter, wife of Doctor Hugh Miller of Bombay, and for her children in fee; declaring that the interest or proceeds of said last-mentioned share shall be paid to my said daughter during all the days of her life exclusive of the jus mariti and right of administration of her present or any future husband, and that the principal sum thereof shall be divided at the first term of Whitsunday or Martinmas after her death, and paid to her children equally on their respectively attaining majority or being married, the lawful issue of predeceasers succeeding to their parent's share and otherwise, in the same manner as is provided with regard to the share appropriated to the children of my son Henry; declaring that on the death of either of my sons, or of the said Agnes Taylor [Mrs Miller], without issue or children thereof, or of the family of my said son Henry, before the time of payment above mentioned, the share that would have fallen to them shall be divided amongst the surviving residuary beneficiaries above named equally.”

Mrs Miller died in 1882, having enjoyed the liferent of the share of residue destined to her in liferent and her children in fee. She left no children, and it was to settle the right to the fee of this share that this Case was adjusted.

The first parties were Mr Taylor's trustees. The second parties were William and Patrick Taylor, his sons. The third parties were Henry Taylor's children, who survived Mrs Miller. The fourth parties were the tutors of Jessie Amelia Thomson, a child of one of Henry's daughters who had predeceased Mrs Miller. These second, third, and fourth parties maintained that the share in dispute fell to be divided “amongst the surviving residuary beneficiaries equally,” in terms of the eighth purpose of the settlement quoted above. The next-of-kin and the widow of the testator (fifth parties) maintained that the share was intestate succession. There was also a dispute between the third and fourth parties. They were agreed that one-third of the share belonged to each of the second parties William and Patrick Taylor, but the third parties maintained that the remaining third must be equally divided between them as the only children of Henry who survived Mrs Miller, while the fourth parties maintained that Jessie Amelia Thomson was entitled to one-third of this third part of the share as the only child of her mother, a child of Henry.

The questions of law were—“(1) Whether the share of the residue liferented by Mrs Miller falls to be divided into three equal parts among the said William Taylor, Patrick Thomson Taylor, and the representatives of the testator's son Henry Taylor (second), under the said eighth purpose of the said trust-disposition and settlement; or whether the said share is intestate succession of the testator? (2) In event of the first alternative of the above question being answered in the affirmative, Whether the said Miss Jessie Amelia Thomson is entitled to one-third of the portion of said share falling to the representatives of the said Henry Taylor (second), either immediately or contingently on her attaining the age of twenty-one years or being married?”

The Court having expressed the opinion that the first question must be answered in the first alternative, the discussion was confined to the second question.

Argued for the parties of the fourth part—The

Page: 299↓

conditio si sine liberie operated here to the effect of substituting. Jessie Amelia Thomson in the place of her mother as a sharer along with her uncle and aunt, the surviving children of Henry Taylor (second) in the share of the testator's succession liferented by Mrs Miller— Rougheads v. Rainnee, 1794, M. 6403.

Argued for the parties of the third part—The clause of survivorship which closed the bequest excluded the application of the conditio si sine liberis.

At advising—