Scottish Court of Session Decisions

Lord President—In this case we have to construe certain provisions made by the testator in 1874 in favour of his youngest daughter Barbara Halliburton and her heirs and assignees. The competition has regard to the estate which was left to Barbara, and arises in consequence of the fact that Mr Halliburton was twice married. The surviving children at the date of the deed, were one son and one daughter of the first marriage, and four daughters of the second marriage, of whom one, Barbara, subsequently died, predeceasing the testator. Now, Barbara having predeceased the testator, if the estate left to her does not go to her heirs and assignees in terms of the second purpose of the settlement, and the residue thus falls into intestacy, the effect will be that the whole surviving children of Mr Halliburton will be entitled to the residue; if, on the other hand, the heirs of Barbara are conditionally instituted, then her brothers and sisters of the full blood, that is to say, the surviving children of the second marriage, will become entitled. And these are the parties before us.

The deed is exceedingly simple in its terms, and there is not much means of obtaining light on the question except the words themselves in the clause under construction. The testator conveys his entire estate to trustees for the purpose, in the first place, of paying his debts, and then the only other purpose is stated in the following terms:—“That my trustees shall, as soon after my decease as may be, dispone, convey, and make over to Barbara Halliburton, my youngest surviving daughter, and her heirs and assignees, the whole of the residue and remainder of my estates, heritable and moveable (the whole of the other members of my family having been already provided for by me); and declaring further that the provisions already made by me to my other surviving children are hereby declared to be in full satisfaction of all claims of legitim or executry competent to them, or any of them, by or through my decease, in any manner of way.” The rest of the deed consists entirely of what may be called mere clauses of style.

Now, as a general rule, where there is a conveyance to a person named, and his or her heirs and assignees, or a conveyance to trustees in these terms, in the event of the person dying before the granter the heirs of the grantee take. That rule is applicable to mortis causa deeds as well as to others, but it is a rule not without exceptions of course, and examples of such exceptions have been brought under our notice. The most important and recent of these cases is that of Findlay v. Mackenzie, and if this case had at all resembled in its circumstances the case of Findlay v. Mackenzie, I would have been prepared to follow the decision there pronounced; but the difference between the two cases is very material. In Findlay v. Mackenzie the testator had one daughter who had been amply provided for by his marriage-contract, and he had no other object of affection except his wife, and therefore he conveyed to her his whole estate; and the terms of the conveyance are similar to the present so far as regards the person to whom the gift was made, for it is to her “and her heirs and assignees whomsoever;” but then in the same clause the testator had expressed himself in this way—“it is my wish to provide further for my wife… in the event of her surviving me, over and above the provisions already conceived in her favour in an antenuptial contract of marriage,” and further, he had nominated his widow to be his sole executrix. From these expressions the Court came to the conclusion that the object of the testator was to make a gift to his wife only in the event of her surviving him, and that intention was gathered from the words in which the gift was made. But here there are no such expressions to guide us. No doubt there follows this statement, in a parenthesis, “the whole of the other members of my family having been already provided for by me,” and therefore we must take that as a fact, and a fact very particularly present to the mind of the testator. We have no information as to what these provisions were, and we are not entitled to assume that they were contained in bonds of provision, or that they were of such a nature as not to pass to heirs and assignees. The probability is that they were not of that kind at all. The other daughters of the testator were married, and it is exceedingly probable that their provisions were settled upon them by marriage-contract. His sons were well advanced in life, and therefore most probably engaged in trades or professions, and the money expended in establishing them in business would very naturally form the provisions to them. They may have been of a different nature, but we cannot speculate as to that. We have the simple fact that in the opinion of the testator his other children had been sufficiently provided for, and therefore he gives the balance to his single daughter Barbara, who was apparently living in family with him, and he gives it also to her

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