Scottish Court of Session Decisions

The deceased James Ballantine, who died in Glasgow in 1815, by disposition dated 2d September 1807, conveyed and disponed to the parties mentioned in the deed his whole heritable estate, consisting, inter alia, of certain plots of building ground in Glasgow. The terms of the conveyance were—“To and in favour of James, John, Margaret, Ann, and Jean Ballantine, my children, and to any other lawful child or children I may have at my death, in liferent equally, during all the days and years of their lifetimes, for their liferent uses allenarly, and to their lawful children also equally, in fee and property, but always under the preferences provided to my sons and their lawful children over my daughters and their lawful issue, as after specified.” The conveyance, which was burdened with certain provisions to the testator's widow, provided by its third purpose as follows:—“I ordain that after satisfying and paying the foresaid provisions to my wife, and the expenses of repairing and insuring said subjects against fire, paying feu-duties and all other public burdens thereon, the rents thereof shall be divided at Whitsunday and Martinmas, half-yearly, equally among my children during their respective lives, but each of my sons shall have and be entitled to £10 sterling yearly therefrom more than their equal shares thereof, or than each of my daughters, and which preference of £10 sterling to my sons shall, when the succession to the fee of said heritable subjects takes effect, descend to their children equally, and the same shall be valued accordingly above the shares thereof due to the children of my daughters; and in case any of my said children die unmarried or without leaving lawful issue, the shares or share of such shall accresce and be equally divided among my surviving children in liferent only, and to their lawful issue equally, in fee and property as aforesaid. “

After the testator's death his children, who all survived him, were infeft in liferent in the heritable subjects already referred to, and also in another piece of ground acquired by the testator subsequent to the date of the deed, butalwaysin the terms and under the conditions set forth therein.

James and John Ballantine, the testator's sons, both died without issue. Ann married a person named Brown, and died leaving issue.

In 1842 the three heritable subjects were acquired by the Glasgow, Paisley, Kilmarnock, and Ayr Railway Company, and the price, amounting to £5050, was consigned in the Royal Bank of Scotland in name of John Wilkie, writer, Glasgow, for behoof of the parties interested, and subject to the orders of the Court of Session.

On 16th July 1842, on an application by the children of the testator's daughter Ann Ballantine or Brown, authority was granted to pay the petitioners, as fiars of one-third of the said three plots

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of ground, one-third of the price obtained therefor. The remaining two-thirds was invested by the said John Wilkie, under authority of the Court, in the purchase of heritable subjects in Glasgow. The dispositions were in favour of Mrs Bowman and Mrs Allen (daughters of the testator, and the only surviving children) “in liferent equally … for their liferent use allenarly, and to their lawful children also equally in fee and property as specified in the said disposition and deed of settlement.”

Mrs Allen died on 31st October 1884, and Mrs Bowman on 20th February 1885. Mrs Allen had five children, of whom the pursuer of this action, John Allen, was the only survivor. Mrs Bowman had twelve children.

The present action of declarator was raised by John Allen to have it declared that he had absolute right to the fee and property of one-half pro indiviso of the subjects mentioned in the summons, being the subjects purchased by the said John Wilkie under the approval of the Court, with the balance of the money received from the Glasgow and Ayr Railway Company for the lands acquired by them at one time the property of the testator. He averred that at the death of his mother (Mrs Allen) he became entitled to one pro indiviso half of the said subjects, in terms of the disposition of the said James Ballantine (his grandfather) the testator.

The defenders to the action were other children of Mrs Bowman, and the representatives of those who had died. They disputed the pursuer's right to one-half of the said subjects, and maintained that under the disposition of the testator the subjects fell to be divided per capita among the pursuer and the children of Mrs Bowman.

The pursuer pleaded that on a sound construction of the settlement of James Ballantine, the testator, he was entitled to one-half pro indiviso of the subjects.

The defenders pleaded that the subjects fell to be divided per capita, and not per stirpes.

On 19th December 1885 the Lord Ordinary found, declared, and decerned in terms of the conclusions of the summons.

“ opinion.—This case relates to the construction of a somewhat peculiar family provision of heritable property to the children of the testator in liferent and their children in fee. The pursuer, who is one of the testator's grandchildren, claims one-half of the fee on the assumption that the property is divisible per stirpes; the defenders claim that the property shall be divided per capita amongst all the testator's grandchildren. The destination begins by disponing the property to the testator's children in liferent equally for their liferent use allenarly, ‘and to their lawful children, also equally in fee and property,’ but subject to the preferences thereinafter provided in favour of his sons and their lawful children over his daughters and their lawful children. Before proceeding to the construction founded on the clause of preference, it is proper that I should consider what would be the construction of the clause of disposition taken by itself.

A gift to a class of persons, however described and however connected by relationship, is prima facie, a gift divisible per capita; and this not in virtue of any arbitrary rule of law, but because according to the conception of the gift, all the members of the class are equally favoured, and because the destination can only receive effect by means of an arithmetical division of the gift amongst the objects of the class.

But where property is destined by the head of a family to his children in liferent, and their children in fee, many considerations point to a distributive construction of the gift of the fee as the more probable representation or interpretation of the testator's meaning. It is true that it is always in the power of the testator to render this construction clear and certain by the use of the word ‘respectively,’ or other distributive expressions, and in the present case the defenders rely on the absence of express words denoting family distribution. Yet, even the word ‘respectively ‘is not in itself a complete expression of a scheme of division per stirpes; it imports only a logical distribution of the members of the class of the second degree under the several members of the class of the first degree, from whom their descent is derived. Now, the verbal expression of that distribution may very well be dispensed with where the relationship on which it is founded exists in fact, and where that relationship is set forth in the deed of gift, as the descriptive character by which the legatees are to take the benefit intended for them.

But further, while the language of the gift is itself suggestive of a scheme of division in which a benefit is to flow from parents to children, it is not immaterial to notice that the suggested construction is in harmony with what may be termed the natural order of inheritance, and the order in which interests in moveable estate are derived under the present law of moveable succession. And again it is a convenient and workable scheme of division while the opposite scheme of construction involves the apparent anomaly that as each liferenter dies his share is to be divided amongst all his father's issue, including those whose parents are in the actual enjoyment of the income of other schemes of the fund.

For these reasons, and notwithstanding the repetition of the word ‘equally’ in the gift of the fee, I think the distributive construction is the one which ought to be adopted, as the more probable rendering of the testator's will. Some meaning must be given to the word ‘equally,’ and I think effect is given to it by following the principle of equality in the several parts of the distribution, that is (excepting as afterwards provided in the will), the share of each family is to be equal, and each such share is to be divided equally amongst the members of the family.

Now, with respect to the clause of preference in favour of the sons, the clause is printed ad longum in the condescendence, and the substance of it is this—that in the division of the income each of the sons is to receive £10 per annum out of the first of the income, and the remainder of the income is to be divided equally amongst sons and daughters. The preference of £10 is to be continued to the children of the sons, in the ultimate division of the fee, and the shares of children who may die without leaving issue are to accresce to the surviving children in liferent and their lawful issue in fee.

It is evident that the testator has here recognised the principle of a devolution of interest from parent to child, to the extent of the precipuum to which the parent, if a son, is entitled.

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The defenders are not insensible to the force of the argument which is founded on this clause, but they endeavour to meet it by the suggestion that the testator has here plainly directed a division per stirpes in contradistinction to the strictly equal division which they say he has prescribed with reference to the residue of the property. The adverse view is, that in reference to the preferential sums given to sons, it was necessary to particularise in order to avoid confusion, and that in developing his scheme with reference to this particular case, the testator has disclosed that it is a distributive scheme. It is, to say the least, improbable that the testator should have conceived two fundamentally different schemes of division for different parts of this small property, and, on the whole, I think that the clause in question supports the construction which I attribute to the dispositive clause. In any view it does not appear to me to invalidate the reasoning which has led me (following the authority of the nearest decided cases), to a decision in favour of the party founding on the principle of a per stirpes division. I accordingly decern in favour of the pursuer.”

The defenders (having obtained leave) reclaimed, and argued—On a fair construction of the dispositive clause of this deed it was a conveyance to the grandchildren of the testator equally among them. There was to be equality of division with the exception of the £10 preference. This was to be capitalised, and was to be a present gift to a certain class, which purported an equal division among that class. The mere intervention of a liferent made no difference—what was intended by the testator was a family distribution. The interposed liferent was a mere burden on the fee— Home's Trustees v. Ramsay, Dec. 11, 1884, 12 R. 314; Laing's Trustees v. Sanson, Nov. 18, 1879, 7 R. 244; Bogie's Trustees v. Christie, Jan. 26, 1882, 9 E. 453; Buchanan's Trustees, June 13, 1883, 20 Scot. Law Rep. 666; Ferguson, July 12, 1872, 10 Macph. 968; Black v. Mason, Feb. 18, 1881, 8 E. 497.

Replied for respondent—The question was settled by Home's Trustees. Here a separate liferent was provided to each daughter, and the fee to their children, i.e., each set of children got what their respective mothers had.

Authorities cited by reclaimers.