Scottish Court of Session Decisions

The testatrix was survived by both sisters, one of whom subsequently died leaving an only child. On the death of this child the surviving sister claimed the liferent of her one-half of the residue jure accrescendi,

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or alternatively, she maintained that it fell into intestacy, and that she was entitled thereto as heir in mobilibus of the testatrix. Held (following Paxton's Trustees v. Cowie,13 R. 1191) that there was no accretion, and that the income fell to be accumulated and divided along with the rest of the residue in terms of the settlement.

Miss Helen Stobie of Easter Balgedie, Kinross, died on 16th September 1883 leaving a trust-disposition and settlement and codicil, dated respectively 19th December 1877, and 19th March 1881. By the fourth purpose of the settlement the testatrix directed her trustees as follows—

“That my said trustees shall, as soon as they shall judge expedient after my decease, and in such way and manner as they shall think proper, realise and convert into cash the whole residue and remainder of my said means and estates, including my property of Easter Balgedie, and shall hold the whole of the said residue and remainder, and the price and proceeds thereof, for behoof of the said Margaret Stobie or Ronaldson and Jane Stobie or Clark, in liferent, and shall annually, or at such other times as my trustees shall judge expedient, pay over to them, equally between them, the free annual produce or income thereof during their joint lives, and in the event of either of my said sisters predeceasing me, or upon the death of either of them after my decease, my trustees shall pay over one-half of the said free proceeds or income to her children equally, share and share alike, if more than one, during the lifetime of the survivor of my said sisters, and the other half to such survivor.” The fifth purpose provided that “as soon as Conveniently may be after the death of the longest liver of the said Margaret Stobie or Ronaldson and Jane Stobie or Clark, or after my own death, should they both predecease me, my trustees shall pay over and divide the whole free residue and remainder of my said means and estates, and the price and proceeds thereof, to and among the said William Ronaldson, Thomas Ronaldson, John Ronaldson, Eliza Ronaldson or Thomson, and Maggie Jane Clark, my nephews and nieces, equally, share and share alike.”

The testatrix was survived by two sisters, Mrs Ronaldson and Mrs Clark, both widows. Mrs Clark died on 17th September 1883, survived by an only child Miss Maggie Jane Clark. On the death of Miss Stobie the trustees paid to Mrs Ronaldson and Miss Maggie Jane Clark, equally between them, the free annual income of the estate until the death of Miss Maggie Jane Clark on 10th November 1885.

A difficulty then arose as to the disposal of one-half of the free annual income of Miss Stobie's estate accruing during Mrs Ronaldson's lifetime.

This special case was accordingly presented, the first parties to which were the trustees under Miss Stobie's trust-disposition and settlement; the second parties were Mrs Ronaldson and her children; and the third parties were the trustees under Miss Maggie Jane Clark's trust-disposition and settlement.

The parties of the second part maintained that upon the death of Miss Clark the liferent of the one-half of the residue enjoyed by her passed by force of the settlement to Mrs Ronaldson; or otherwise, that both Mrs Clark and her daughter Miss Maggie Jane Clark having survived the testatrix and predeceased Mrs Ronaldson, which event was unprovided for by Miss Helen Stobie's trust-disposition and settlement, the one-half of the free annual proceeds or income of Miss Helen Stobie's estate, which was payable to Mrs Clark and her daughter Miss Maggie Jane Clark, and which would, since Miss Clark's death, accrue during the lifetime of Mrs Ronaldson, fell into intestacy, and that Mrs Ronaldson was entitled to payment thereof during her lifetime as Miss Helen Stobie's heir in mobilibus.

The parties of the third part maintained that the one-half of the free annual proceeds or income of Miss Helen Stobie's estate, which was payable to Mrs Clark and her daughter Miss Maggie Jane Clark, and which would, since Miss Clark's death, accrue during the lifetime of Mrs Ronaldson, formed part of the residue of Miss Helen Stobie's estate conveyed by her trust-disposition and settlement, and should be accumulated with the capital of her estate from time to time as it fell due until the residue became divisible in terms of the fifth purpose.

The following were the questions in law—“(1) Is the said Mrs Margaret Stobie or Ronaldson, as the survivor of the two liferentrices nominated and appointed by the said Miss Helen Stobie, entitled, since the death of the said Miss Maggie Jane Clark, to the liferent of the whole residue of Miss Helen Stobie's trust-estate? (2) Is the said Mrs Margaret Stobie or Ronaldson, as heir in mobilibus of the said Miss Helen Stobie, entitled, since the death of the said Miss Maggie Jane Clark, to payment during her lifetime of one-half of the said free annual proceeds or income of the said Miss Helen Stobie's estate which was payable to Mrs Clark and her daughter Miss Maggie Jane Clark?… (4)Does the said one-half of the free annual proceeds or income of the said Miss Helen Stobie's estate, which was payable to Mrs Clark and her daughter Miss Maggie Jane Clark, and which will, since Miss Clark's death, accrue during the lifetime of Mrs Ronaldson, form part of the residue of the said Miss Helen Stobie's estate conveyed by her trust-disposition and settlement, and should it be accumulated with the capital of her estate from time to time as it falls due, until the residue becomes divisible in terms of the said fifth purpose?”

Argued for the first and second parties—Mrs Ronaldson was entitled to the liferent of one-half of the residue on the death of her niece. No doubt that event was not contemplated by the testatrix, and no provision was made for such an occurrence, and in such a case in construing the deed it was necessary to fall back upon the primary purpose. This was clearly a case in which accretion should take place, and on the death of one sister, the other, under the fourth purpose of the trust-deed, succeeded to the liferent of the whole residue. If this were not so, then the income of one-half of the residue was undisposed of, and fell into intestacy— Tulloch v. Tulloch, November 23, 1838, 1 D. 94; Barber v. Findlater, February 6, 1835, 13 S. 422.

Argued for the third parties—The half of the free yearly interest of the trust-estate freed by the death of Miss Clark fell into residue, and went according to the directions of the will.

The fifth purpose provided for a case like the present— Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191.

At advising—