Scottish Court of Session Decisions

This was a Case stated, in terms of the Statute 22 and 23 Vict. cap. 63. by Mr Justice Pearson in a suit depending in the High Court of Justice (Chancery Division) in England, between Wilmot Henry Bradford as plaintiff and William Baird Young and others, defendants, for the opinion of the Court of Session with reference to the law of Scotland as administered by it, and so far as the same was applicable to the facts as set forth in the Case. These facts were, that Hugh Falconar died on 23d February 1827 domiciled in Scotland, leaving a trust-disposition and settlement prepared by a Writer to the Signet in Edinburgh, but undated and unsigned, containing inter alia this residuary bequest—“And lastly, I appoint the whole residue and remainder of my funds and estate to belong and be paid to or secured, under the restriction after inserted, for the behoof of the said Jeanne or Jane Falconar (an illegitimate daughter of the said Hugh Falconar),” whom I hereby name, constitute, and appoint my residuary legatee; and I appoint my said trustees to be the guardians of my said daughter in the care and disposal of the funds devolving on her under this my settlement, with power to them, whether or not my said daughter shall have attained majority or be married at my decease, and I hereby specially enjoin them, to secure the residue of my funds and estate falling to my said daughter so as that the same shall not fall under the right or administration of her husband, or be attachable by his creditors, or affectable by his debts or deeds, but be enjoyed by herself during her life, with the fee or remainder to her children according as she shall divide the same among them: And failing of her and her issue, the liferent of the residue to belong to and be enjoyed by her husband, if she shall have left a husband surviving her; and failing my said daughter and her issue, and on the decease of her husband, either before or after my decease, I appoint my said brother John, for his liferent use and his lawful children and their issue in fee or remainder, my residuary legatees.” This unsigned trust-disposition and settlement was on 29th March 1828 admitted to probate by the Prerogative Court of Chancery in England, and as the “probate has never been revoked, it is to be assumed that according to English law the said unsigned trust-disposition and settlement is a valid testamentary disposition.”

The executors realised the estate and paid the income to Jeanne or Jane Falconar during her life. She died unmarried on 10th February 1882, and the plaintiff ( W. H. Bradford) was her legal personal representative appointed by her will. After her death Hugh Falconar's trustees paid his estate into the Chancery Division, where it awaited distribution.

At the date of Hugh Falconar's death he had one brother alive, who had four children. Of these two left issue. The only child of one of them died in 1874 leaving four children. The other had two children, one of whom died in 1881 leaving five children alive at the date of this Case, some of whom were married and had issue. There was thus at the death of Jeanne Falconar great-grandchildren and great-great-grandchildren of John Falconar.

The questions submitted were—“(1) What interest was taken by the said Jeanne or Jane Falconar in the residuary bequest, …. and what interest is now taken by her legal representative? (2) If the said Jeanne or Jane Falconar did not take an absolute interest in the said residuary bequest, what interest, if any, therein, after her death, was taken by the children, grandchildren, greatgrandchildren, and great-great-grandchildren of the said John Falconar respectively?”

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Wilmot Henry Bradford, the plaintiff, presented this petition to have the opinion of the Court on these questions.

The defendants maintained with reference to the point that the deed was stated to be unsigned, that the case had not been submitted for the purpose of obtaining a decision of the Scotch Court that the deed was invalid. The fair import of the case as presented was that a decision should be obtained as to the meaning and effect in Scotland of the destination in the deed.

On the suggestion of the Court the case was argued on the assumption (1) that the deed was valid; and (2) that the case had been submitted for the purpose suggested by the defendants.

The petitioner then argued—On a sound construction of the deed, Jane Falconar took a fee of her father's estate. The deed began with an absolute gift of the residue to her, and the onus of showing that the posterior words restricted that gift lay with the defendants. She was the persona prœdilecta of the settlement, and the whole of the destinations-over were to be read merely as rendering her rights more secure, and certainly not as limiting her right of fee. It would be carrying out the truster's instructions if the trustees had made her execute an antenuptial contract by which she conveyed property exclusive of the jus mariti of her husband, to herself in liferent and her children in fee. It was just a case where there was really a fee in the parent, but defeasible in the event of children coming into existence. As she never had any children, there was no reason why she should not get the fee. The doctrine of such defeasible vesting was firmly established in the law of Scotland— Snell's Trustees v. Morrison, March 20, 1877, 4 R. 709; Lindsay's Trustees v. Lindsay, &c., December 14, 1880, 8 R. 281.

The defendants in reply contended that Jane Falconar's interest was only one of liferent, and relied on the case of Duthie's Trustees v. Kinloch and Others, June 5, 1878, 5 R. 858; Mitchell's Trustees v. Smith, &c., July 7, 1880, 7 R. 1086 (Lord Young's opinion). The case of Lindsay's Trustees v. Lindsay depended on the specialty that the testator acquired large property with his first wife, by whom he had two children, and he desired for this reason to leave them more than his other children.

At advising—