Scottish Court of Session Decisions

By his trust-disposition and settlement Gordon Ellis senior, who died in February 1853, conveyed to trustees his heritable and moveable estate of the value of about £650, and directed his trustees after his death to turn the whole of his heritable and moveable estate, or such part as they might consider advisable, into cash, and conferred on them power of sale and of reinvestment. He then directed his trustees to pay over to his wife the income, with power to encroach upon the capital if necessary, for her comfortable maintenance. He also provided—“Upon the death of my said spouse I appoint my said trustees and their foresaids to pay the whole annual rents, interest, and revenue which they may receive from my said whole estate, or the remainder thereof, to Gordon Ellis my son, and Margaret Ellis my daughter, and that yearly or half-yearly, as they receive the same, and they shall have full power to pay such part of the principal sums or stock of my estate to my said son and daughter, at any time my said trustees and their foresaids may think proper, my said trustees having full power either to withhold payment to my said son and daughter of any part of the principal or stock of my said estate, or they may pay the same to them equally by one payment, or by various payments, as to them may seem proper; but my said son and daughter shall have no right to demand payment from my said trustees and their foresaids of the said principal sum or stock of my estate, or any part thereof, it being my wish and intention that my said trustees and their foresaids shall have full and discretionary power either to pay the whole or part of my said estate to my said son and daughter, or to withhold the same from them altogether: Declaring further, that in case of the death of my said son and daughter, or either of them, before receiving payment of the whole or any part of the principal sums or stock of my estate, and leaving lawful issue, my said trustees and their foresaids shall in that event pay the whole principal sums or stock of my estate remaining unapplied as aforesaid, if any, one-half thereof to the lawful issue of my said son, and the other half to the lawful issue of my said daughter, equally among them, or in the event of only one of my said son and daughter leaving lawful issue, then to pay the whole to such issue equally among them.”

Gordon Ellis senior was survived by his wife Margaret Rough or Ellis, and by his daughter Margaret Ellis, afterwards wife of James Minty, Aberdeen. Mrs Ellis enjoyed, in terms of the trust-disposition and settlement, the liferent of the trust-estate down to the date of her death on 12th June 1865. Margaret Ellis or Minty died on 22nd November 1874, leaving issue George Cumming Minty, William Minty, and Margaret Rough Minty or Mowat, who were the petitioners. They averred that Gordon Ellis junior, son of the deceased Gordon Ellis, left Scotland for Melbourne, Australia, in August or September 1850, his age at that time being twenty-one. He was then unmarried. They stated that the last letter, the date of which was unknown, had been received from him by Mrs Minty in 1853, some time subsequent to the date of her father's death.

The petitioners further averred—“Under the settlement of the said Gordon Ellis, the said Gordon Ellis junior became, entitled to one-half the residue of the said Gordon Ellis's trust-estate, subject to his mother's liferent, and subject also to certain discretionary powers conferred upon his trustees by the said Gordon Ellis. By the Presumption of Life Limitation (Scotland) Act, 1881, section 4, it is provided that ‘in the case of any person who has been absent from Scotland, or who has disappeared for a period of fourteen years or upwards, and who has not been heard of for fourteen years, and who at the time of his leaving or disappearance was possessed of or entitled to moveable estate in Scotland, or who has since become entitled to moveable estate there, it shall be competent to any person entitled to succeed to the said absent person in such moveable estate to present a petition to the Court setting forth the said facts, and … the Court may grant authority to the petitioner to make up a title to receive and discharge, possess and enjoy, sell or dispose of the said moveable estate in the same manner as if the said absent person were dead.’ By the said Act it is also provided, section 8, that, ‘for the purposes of this Act, in all cases where a person has left Scotland or has disappeared, and where no presumption arises from the facts that he died at any definite date, he shall be presumed to have died on the day which will complete a period of seven years from the time of his last being heard of at or after such leaving or disappearance.’ In the circumstances above set forth, the said Gordon Ellis junior has been absent from Scotland for a period of fourteen years and upwards, and has not been heard of for fourteen years, and there being no presumption arising from the facts that he died at any definite date, he is by virtue of the 8th section of The Presumption of Life Limitation (Scotland) Act 1881 to be presumed to have died at some date in the year 1860, and not later than 31st December 1860, being the date which will complete a period of seven years from the time of his last being heard of after he so left Scotland. At the date when he is so presumed to have died his next-

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of-kin was his sister, the now deceased Margaret Ellis or Minty, who is represented by the petitioners, who are her whole children. Assuming the said Gordon Ellis junior to have died in the year 1860, the petitioners are entitled to succeed to him in his share of the estate of the said Gordon Ellis, either as representing his next-of-kin, being his sister the said Margaret Ellis or Minty, or as themselves substituted or conditionally instituted to him under the settlement of the said Gordon Ellis.”

The trustees lodged answers, and stated—“The statements in the petition, other than those regarding the absence and disappearance of Gordon Ellis junior, and other than the statement that, subject to his mother's liferent and certain powers conferred upon the trustees, he became entitled to one-half of the residue of the estate, are admitted. The facts stated regarding the said Gordon Ellis junior are not known to or admitted by the respondents. The trust-disposition and settlement is referred to for its terms. The respondents submit that the said Gordon Ellis junior, if he is presumed to have died not later than 31st December 1860, never became entitled to any part of the trust-estate, and that therefore the petition is incompetent.”

Argued for the petitioners—There was no doubt that Gordon Ellis junior survived his father. His right to the property therefore vested. The petitioners were included under the last clause of the will. The statute was remedial in character, and was intended to give relief in circumstances like the present. If the statute were not held applicable, the petitioners could not obtain the property, there being no presumption at common law that the absentee was dead.

Counsel for the respondents was not called upon.

At advising—