Scottish Court of Session Decisions

James Dalglish, manufacturer in Glasgow, died on 24th July 1849, leaving a trust-disposition and settlement dated 7th May 1847, by which he disponed to trustees his whole estate, for certain purposes, inter alia—(2) For providing an annuity to his widow if she should survive him. (4) “I appoint my said trustees to divide the remainder and residue of my said means and estate into twenty-eight equal parts or shares, four of such parts or shares to be paid to each of my four daughters, and six parts or shares to each of my two sons; and on the death of my said spouse, in case she shall survive me, I direct my said trustees to divide the sum set apart for answering her annuity, and the proceeds of the house and furniture liferented by her, among all my children in the same proportions, said shares to be payable to my said children as soon as my estate shall be realised and converted into cash; which provision in favour of my said daughters shall be exclusive of the jus mariti or right of administration of any husbands they may presently have or may afterwards marry, and not subject to the debts or deeds of such husbands or the diligence of their creditors, and the same shall be under their entire control and disposal; and in the event of the death of any of my said children before receiving payment of their shares without leaving lawful issue, the share of such deceaser shall be divided among my surviving children or their issue in the proportions foresaid; and in the event of the death of any of my said children leaving lawful issue, the share of such deceaser shall be paid to said issue equally, share and share alike.” By codicil dated 3rd March 1848 he directed and appointed his trustees “to invest the shares of my means and estate falling to my daughters at my death, and at the death of their mother, in case she shall survive me, so soon as the same is realised, and can be invested upon heritable security, taking the rights thereto conceived in favour of such daughters in liferent for their liferent use allenarly, and to the child or children of their bodies, if more than one, equally among them in fee; declaring that said liferent provisions shall be purely alimentary, exclusive of their husbands' jus mariti, not attachable for his or their debts, nor assignable by my said daughters. But providing and declaring that my said daughters or any of them may, if so disposed, by a writing under their hands, continue the liferent provision

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to their husbands during their respective lifetimes, burdened with the support of the children, and may divide and apportion the fee among their children in such proportions, and under such limitations and conditions, as they think proper to impose.”

The truster was survived by a widow, who died 6th September 1876; by one son Robert James Dalglish, who received payment of his share, and four daughters, the capital of whose shares was secured to meet the claims of their issue in terms of the codicil. Robert James Dalglish died without issue on 9th November 1886, leaving a widow in whose favour he executed a general disposition and settlement. Mary Dalglish or Price, one of the daughters, died on 30th November 1865 leaving issue, and Isabella Dalglish or Whitehead upon 31st May 1869, leaving one son.

The capital of the shares of these two daughters were after their respective deaths paid to their children. The annual income of the share liferented by the testator's daughter Margaret Dalglish or Wilson, who was alive, had all along been paid to her, and the annual income of the share liferented by the remaining daughter Jane Dalglish or Bannerman was duly paid to her down to the date of her death, which took place on 22nd January 1888. Mrs Bannerman left a settlement dated 22nd February 1887, by which she appointed certain persons her executors. Certain questions arose regarding the disposal of the share of the estate of the late James Dalglish liferented by Mrs Bannerman, several of the representatives of the late Mr Dalglish maintaining that the share had in consequence of Mrs Bannerman dying without issue become intestate succession of the truster James Dalglish, if it were not governed by the accretion clause in the trust-deed, while her executors maintained that the share vested absolutely in her, and was conveyed to them by her settlement. In consequence of these questions the trustees of Mr Dalglish raised this action of multiplepoinding and exoneration in May 1888 calling these parties as defenders.”

Upon 7th July 1888 the Lord Ordinary ( M'Laren) pronounced this interlocutor:—“Finds that the claimants Thomas Carrit and others, executors of the deceased Mrs Jane Dalglish or Bannerman, are entitled to be ranked and preferred to the whole fund in medio in terms of the first branch of their claim, No. 8 of process, under deduction of expenses, and continues the cause that the amount of said fund may be ascertained: Finds all the parties entitled to their expenses out of the fund in medio; appoints accounts thereof to be lodged, and remits the same to the Auditor to tax and report: Grants leave to reclaim.

Opinion.—The scheme of this will and codicil seems to be that there is, first, what is not strictly a residuary destination but a division of the estate unequally—sons receiving larger shares than daughters. And then in the will there follows a proper residuary clause dealing with the case of any of the children dying before receiving payment of his or her share. It appears to me that under the will, apart from the codicil, there cannot possibly be intestacy, because every contingency is provided for.

Now, the only alteration made upon that scheme by the codicil is this—The testator proposed that, instead of giving the daughters their shares absolutely at his death, settlement should be made in their favour, and he directs that to be done by the trustees as soon as his property is realised and capable of investment. They are to take separate rights heritably secured in favour of the daughters, with a destination which is there described. It appears to me therefore that this case has this analogy with the two cases of Fulton in 1880 and Lindsay in 1881, that it is a case of a trust for members of the testator's family to be effected not by the direct and immediate dispository act of the testator, but by a conveyance to be afterwards executed by the trustees in conformity with directions given to them. Then it will be necessary to consider what would be the true construction of a conveyance of a heritable security to daughters in the terms expressed in the codicil, taking along with the codicil the leading direction of the will, which is referred to in the codicil.

Now, there is a series of decisions regarding destinations in liferent and fee, and so far as any particular destination has been interpreted the decisions must receive effect, because this branch of the law has been very authoritatively systematised. I must observe, however, that the meaning put upon the same words of destination varies according to the cause of granting, and the same words receive very different interpretations according as they occur in a deed of purchase or in a deed of gift.

Again, if it is a question of carrying out a power to settle money, we must find out what are the proper words of destination, and give effect to that power; and we are not necessarily to use the precise words of the power in the deed carrying it into execution. Supposing the destination had been in the very words in the codicil, ‘to the child or children of their bodies, if more than one, equally among them in fee.’ That, according to the old authorities, would not have vested any beneficiary right of fee in the daughter; she would merely be a liferenter with a fiduciary fee for behoof of her children; and if no children, the fee is undisposed of under the terms of the settlement. That is, as I take it, the case contemplated by the Lord President in his opinion delivered in the case of Fulton; the fee is untransferred; and there being no proper residuary clause in Fulton's will the result was that this particular share fell into intestacy. Then it is equally clear that if this had been a case of a title-deed of property purchased by the lady herself, then, according to the destination in the codicil, the daughter would be the fiar, and would hold the fiduciary fee for children, but failing children for herself. In short, it would be a right of fee with a simple destination. But now this is a case of a conveyance to be executed by trustees in such terms as will carry out the testator's will, and while my attention has been called to the observation of the Lord President in Fulton's case—that whatever was directed to be done must be held as done—an observation which is of course indisputable—that still leaves open the consideration of the question, what is it that was directed to be done? This question cannot be determined by merely looking at the bare terms of the codicil. The testatator's intention must be collected from the will and codicil taken together. This is the principle

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I think, of the later decision in Lindsay's case, a decision pronounced by the two Divisions sitting together. That case I hold to be entirely consistent with Fulton, because the Court were dealing with two different things. In Lindsay's case it is true you have not a will and a codicil as we have here, but you have two clauses in the same will, which on a first impression appear to be inconsistent with one another, and therefore the question is much the same as if it had arisen in the construction of a will and codicil which were more or less inconsistent.

Now, the view of the majority of the Court in the case of Lindsay, which view seems to me to be in accordance with the best principle of trust interpretation, is that you are to look at the leading intention in favour of the family, and if there is a leading intention clearly expressed in favour of making an out-and-out gift to the family, and there is in a subsidiary clause a direction to make a settlement, you must frame the settlement in such terms as will prevent the share from going over to another family. So strongly fixed is this principle (that the trustees in framing the deed must ascertain the testator's intention from the whole instrument) that in the two other cases that have been referred to— Ross's Trustees and Lady Massy—the Court directed the execution of a deed in the form of a destination which was unfamiliar to Scotch conveyancers (a very unusual form of destination), because that only was supposed to be capable of carrying out the testator's wishes. Accordingly I come to the conclusion that in the present case the trustees would not have carried out the testator's directions if they had taken heritable security in the precise terms used in the codicil. I would be their duty to take into account the leading direction of the will itself, which is in no way expressly revoked, and which directs a partition amongst the families, giving certain shares to sons and certain shares to daughters. The security to be taken would have provided that in the case of there being no family the share of the deceaser should be divided amongst the surviving children or their issue. I ought to notice that an argument was founded on the closing words of the codicil—‘But providing and declaring that my said daughters, or any of them, may, if so disposed, by a writing under their hands, continue the liferent provisions to their husbands.’ I do not found much upon that clause, because it is also capable of being read as a limitation of the fee to the daughters. It would rather be in favour of the daughters having a more limited right than one of fee in the event of there being children of the marriage. But then, in that event, the children were to get the fee, and it is only in that case that it is thought necessary to give the wife a power of continuing her liferent to her husband. These words do not seem to me to militate against the theory that in the event of failure of issue the daughter is to have the reversion of the fee.

The result is that I sustain the claim of Mrs Bannerman's executors.”

Ralph Whitehead, the only son of Mrs Isabella Dalglish or Whitehead, one of the defenders, reclaimed, and argued—By the terms of the codicil, as altering the provisions of the 4th clause of the principal deed, the truster Mr Dalglish intended that a bare liferent should be given to his daughters, and that if anyone of them died without issue, then her share should revert to his trustees, and be divided among the other children either according to the accretion clause, or as intestate succession— Fulton's Trustees v. Fulton, Feb. 6, 1880, 7 R. 566. That case was identical with the present with the exception that here there was a residuary clause, but if the share was not carried by that clause, then it fell into intestacy according to the rule laid down in that case. The case of Lindsay, on which the other side relied, was very special, and different from this case in another respect, as there was there only one deed, while here there were two which were inconsistent with each other.

The respondents (Mrs Bannerman's executors) argued—The truster had given the fee of a certain number of shares of his estate to his daughters, these therefore vested in them a morte testatoris, although the period of division of part of the estate was not till Mrs Dalglish's death. The direction in the codicil did not take the fee away from the daughters; it only provided for the protection of their possible children. There was no issue of this marriage, therefore the clause in the codicil was inoperative. Mrs Bannerman's share had vested in her, and was at her disposal. The principle of the case had been already decided in the case of Lindsay's Trustees v. Lindsay, Dec. 14, 1880, 8 R. 281; Gibson's Trustees v. Ross, July 12, 1877, 4 R. 1039. Mrs Bannerman took an absolute interest in her share, subject only to the constitution of a trust in the event of her having children, and on her death without issue the property passed to her executors— Bryson's Trustees v. Clark, Nov. 26, 1880, 8 R. 142; Howat's Trustees v. Howat, Dec. 17, 1869, 8 Macph. 337; Bradford v. Young, July 19, 1884, 11 R. 1135.

At advising—