Scottish Court of Session Decisions

William Foreman Home, Esquire, of Billie, Paxton, and Wedderburn, died on 28th April 1852, survived by four daughters, viz.—(1) Mrs Jean Home or Milne, Spouse of David Milne of

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Milne-Graden, Esquire; (2) Mrs Margaret Home Or Cathcart, Spouse of the Hon. Adolphus Frederick Cathcart; (3) Mrs Georgina Hay Home or Ramsay, spouse of Captain Francis Ramsay, of the Royal Artillery; and (4) Mrs Isabella Jane Home or St Clair, Spouse of the Hon. Charles St Clair, captain in the Royal Navy. The Eldest of those Daughters, Mrs Milne, succeeded him in the entailed estates of Billie, Paxton, and Wedder-burn.

By his trust-disposition and settlement, under which the Right Hon. Charles William Baron Sinclair and others were appointed trustees, dated 9th April 1849, the said William Foreman Home conveyed, disponed, and made over in trust to the trustees therein named, and to the acceptors and acceptor, survivors or survivor of them, or of those who should be assumed into the trust, the whole estate, heritable and moveable (with the exception of a family portrait), belonging to him at the date of his death, and directed his trustees to turn the same into money, and after providing for his debts and the expenses of the trust, to invest the free residue on real security in Scotland or England, or in Government stock, and to hold one-third share thereof for the liferent use and behoof allenarly of his daughter Mrs Margaret Home or Cathcart, and after her death, in the event of her husband surviving her, for his liferent allenarly; one-third for the liferent use and behoof allenarly, in like manner, of his daughter Mrs Georgina Hay Home or Ramsay, and after her death, in the event of her husband surviving her, for his liferent use allenarly; and the remaining third for the liferent use and behoof allenarly of his daughter Mrs Isabella Jane Home or St Clair, and after her death, in the event of her husband surviving her, for his liferent use allenarly. The trust-disposition then proceeded as follows:—-“And after the death of my said daughters, and their present and future husbands respectively, then the third part or share liferented by each of them as aforesaid shall be divided equally, and share and share alike, amongst the lawful issue of each of my said daughters on their respectively attaining majority—that is to say, the issue of each of my said daughters shall be entitled to have divided amongst them as aforesaid the one-third part or share liferented by their mother; and in the event of any of my said daughters dying without leaving lawful issue, then the one-third part or share liferented by such daughter shall, after the death of her and of her said present or future husband be held by the said trustees for the liferent use and behoof allenarly of her surviving sisters (other than my daughter Mrs Jean Home or Milne), and failing them or either of them, then the said third part or share shall be divided equally amongst their lawful children, share and share alike, on their respectively attaining majority.”

By bond of provision executed by him on the same day as his settlement, 9th April 1849, Mr Home, on the narrative of his being heir of entail in possession of the lands of Billie and Paxton, and duly infeft in the entailed estate of Wedderburn, and of the powers contained in the fourth section of the Act 5 Geo. IV. c. 87 (Aberdeen Act), and that his eldest daughter Mrs Jean Home or Milne, whom failing the heirs of her body, would succeed to him in the said entailed estates, but that his younger daughters, Mrs Margaret Home or Cathcart, Mrs Georgina Hay Home or Ramsay, and Mrs Isabella Jane Home or St Clair, were unprovided for, bound and obliged himself, and the whole heirs and substitutes succeeding to him in the said entailed estates, to pay to the trustees therein named, and to the acceptors and acceptor, survivors or survivor of them, or of those who should be afterwards assumed into the trust, the sum of £33,000, being the computed amount of three years' free rent or value of the said entailed estates, payable with the legal interest from the date of his death, after the expiry of one year thereafter. The purposes of the trust constituted by this bond of provision were precisely the same as those of the trust-disposition and settlement above quoted, and were expressed in exactly the same language. Mrs Cathcart, Mrs Ramsay, and Mrs St Clair accepted the provisions made for them in the bond of provision upon the terms and subject to the conditions expressed in it, and declared the same to be as effectual as if their father had made the provisions absolutely payable to them.

Mrs Cathcart died in 1861 without leaving or having had children. She was survived by her husband, the Hon. Adolphus Frederick Cathcart, who died on 6th April 1884. Mrs Ramsay survived her husband, and died in 1876 leaving three children. Mrs St Clair died in 1852, survived by her husband, who died in 1863; she left six children.

This Special Case was presented by Baron Sinclair and others, Mr Home's trustees, of the first part; Mrs Ramsay's children of the second part; and Mrs St Clair's children, or their assignees, of the third part, in order to obtain the opinion of the Court as to the disposal of Mrs Cathcart's one-third share of the residue of the trust-estate, which share was worth about £3400, and her one-third share contained in the bond of provision, worth £11,000. These shares had been set free for division by the death of her husband the Hon. A. F. Cathcart on 6th April 1884 as above stated.

The second parties maintained that the funds and estate liferented by Mrs Cathcart and her husband, under the two deeds before mentioned, fell to be divided into two equal shares, one thereof going to them, equally among them, as the children of Mrs Ramsay, and the other thereof going to the children of Mrs St Clair or their assignees, equally among them.

The third parties maintained that the said funds and estate fell to be divided into nine equal shares, one thereof going to each child of Mrs Ramsay and Mrs St Clair, or to the assignees of each child respectively.

The questions of law submitted were these—“(1) Do the funds and estate formerly liferented by the late Mrs Margaret Home or Cathcart and her husband, under the foresaid trust-disposition and settlement of the late William Foreman Home, now fall to be divided into two equal shares, one thereof going to the children of the late Mrs Georgina Hay Home or Ramsay, equally among them, and the other to the children of the late Mrs Isabella Jane Home or St Clair, or their respective assignees, equally among them? Or otherwise, (2) Do the said funds and estate now fall to be divided into nine equal shares, one thereof going to each child of the said Mrs Georgina Hay Home

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or Ramsay and Mrs Isabella Jane Home or St Clair, or to the assignees of each child respectively?”

The same questions were submitted in regard to Mrs Cathcart's share of the sum in the bond of provision, and formed the third and fourth alternative questions.

Argued for the second parties—The effect of the words “or either of them” was to partition the liferent of the lapsed share. Therefore the fee must be divided per stirpes and not per capita. Although the general presumption was for division per capita, yet in the cases which established that presumption the element of a liferent was wanting. When that was present, as in the case of Richardson v. MacDougall, division per stirpes seemed to follow as matter of course— Richardson and Others v. MacDougall and Others, Feb. 6, 1866, 4 Macph. 372, revd. March 26, 1868, 6 Macph. (H. of L.) 18; Ramsay's Trustees v. Ramsay, Dec. 21. 1876, 4 R. 243; Jarman on Wills, ii. 196; Wills v. Wills, 20 Eq. Ca. 342; in re Hutchinson's Trusts, 21 Ch. D. 811.

Argued for the third parties—With regard to the original shares the testator had said per expressum that they should be divided per stirpes; from the omission of such an expression in the clause dealing with lapsed shares it was to be inferred that his intention was that the division was to be per capita. The general presumption was that when there was a gift to a class equally among them, share and share alike, the division was to be per capita— MacDougall's case, 4 Macph. 372. This general proposition was not touched by the reversal in 6 Macph. (H. of L.) 18. That case was, besides, distinguishable from the present. The word there was “issue,” and to give it the same meaning throughout the deed (which the Court of Session had not done) it was necessary to read it as referring to family distribution wherever it occurred, But here the testator having used the word “issue” where he intended family distribution, had designedly altered the expression to “their children.” The word “amongst” was clearly in favour of per capita division, as it would be a solecism to use it as referring to a bipartite division. No doubt where, as in Laing's Trs. v. Sanson, Nov. 18, 1879, 7 R. 244, a word had been so used, the testator's purpose would not be defeated, but that one was very different from the present— Holt v. Mackenzie, M. 6602; Grant v. Fyfe, May 22, 1810, F.C.; M'Courtie v. Blackie, Jan. 15, 1812, Hume 270; M'Laren on Wills, i. 675; Bogie's Trustees v. Christie, Jan. 26, 1882, 9 R. 453. The effect of the words “or either of them” was not to divide the liferent, the intention of the testator being that the liferents should be joint, with a jus accrescendi in the survivor.

At advising—