Scottish Court of Session Decisions

The late Patrick Strachan, York Place, Port-man Square, London, died on 31st July 1872, leaving a last will and testament by which he bequeathed his whole estate to trustees whom he appointed his executors. By the sixth article of said will he directed his trustees to hold the sum of £60,000 “as a special fund for the sole use and behoof of the four daughters of my brother … Jane, Barbara, Helen Patricia, and Georgina, the survivors and survivor of them, share and share alike … in trust for the alimentary use and behoof of the said four daughters, the survivors or survivor of them severally and respectively in liferent.” By the seventh article he further directed “that the interest or annual income arising from said special fund of sixty thousand pounds sterling, … shall only be divided and annually paid over to the said four daughters, the survivors or survivor of them, share and share alike, for their personal maintenance and support allenarly during their respective lives, and that, subject to said liferent, the said fund shall be held by my said trustees and executors for behoof of the respective child or children lawfully begotten of the said four daughters or either of them, to the extent of their respective mothers' share in said special fund in fee, and that immediately and not burdened with a liferent to the surviving daughters, and failing child or children, to such person or persons, and in such way and manner, all as each daughter may direct and appoint by or in any writing under her hand however informal the same may be, and that either burdened or unburdened with a liferent to the surviving daughters as may be expressed in such writing;… and I further direct that the residue or remainder of my whole estate, when its sterling value is ascertained and secured at the period more particularly described and provided for as aforesaid, over and above the said special fund of £60,000, or the equivalent of that sum as aforesaid, shall be paid over to my nephew, John Strachan, presently a merchant in Liverpool, for his sole use and benefit.”

The testator was survived by the four nieces mentioned above. Miss Jane Strachan, one of the said nieces, died unmarried and intestate on 12th March 1881, and Mrs Georgina Strachan or Williamson died on 21st April 1887, survived by two pupil children, William Frederick Williamson and Constance Rose Williamson. Mrs Barbara Strachan or Haynes, and Mrs H. P. Strachan or Thackeray, the remaining two nieces, were still alive, but had no children. The revenue of the trust funds was equally divided among the four nieces until the date of Miss Jane Strachan's death, and thereafter was divided among the survivors.

Difficulties having arisen as to the construction of the provisions of the will, a special case was prepared for the opinion of the Court by (1) the trustees, (2) the two daughters of the deceased niece Mrs Georgina Strachan or Williamson, and their guardians, (3) the two surviving nieces, (4) the representatives of the heirs in mobilibus ab intestato of the testator, (5) the testator's residuary legatee, and (6) the heirs in mobilibus ab intestato of the deceased niece Miss Jane Strachan.

The questions submitted were as follows—“(1) Are the second parties entitled to a conveyance of one-third of the said special fund of £60,000, or are they entitled to a conveyance of only one-fourth of the said fund? (2) Are the third parties entitled to the liferent of the one-fourth which was payable to Miss Jane Strachan? (3) Are the fourth parties entitled to the fee of Miss Jane Strachan's one-fourth of the trust fund, and if so, is their right burdened with a liferent in favour of the surviving nieces of the testator? (4) Is the fifth party entitled to Miss Jane Strachan's one-fourth share of the trust fund, as residuary legatee of the testator, and if so, is his right burdened with a liferent in favour of his sisters? Or (5) Are the sixth parties entitled to Miss Jane Strachan's one-fourth share of the trust fund as next-of-kin of Miss Jane Strachan, and if so, is the right burdened with a liferent in favour of the surviving nieces of the testator?”

Argued for second parties—They were entitled to one-third share of the fee, because the settlement gave it “to the extent of their mothers' share,” and Mrs Williamson was rightly liferented in one-third. It was clear that in the joint gift of income there was an implied survivorship in the event of a niece dying without children, and without disposing of the fund by will. The words “severally” and “respectively” were not necessarily fatal to implied survivorship— Barber v. Findlater, February 6, 1835, 13 S. 442; Bell's Prin. 1879. The express power to disburden of an accrescing liferent implied survivorship where the power was not exercised— Tulloch v. Welsh, November 23, 1838, 1 D. 94, where Lord Moncrieff points out that words of severance in a joint gift must be controlled by the context. The words “share and share alike” were merely demonstrative of the mode of distribution. Besides, in a gift of income, “survivors” did not primarily mean surviving the testator; hence there was an express survivorship in the gift of income. No such consideration existed in the case of Paxton's Trustees, infra.

Argued for third parties—The second parties were only entitled to an immediate conveyance of a fourth, and the fourth, the liferent of which had been set free by the death of Miss Jane Strachan, fell to be paid to them and the

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survivor of them in liferent from and after the date of the death of their sister Mrs Williamson.

Argued for the fourth parties—(1) The residuary legatee was excluded by the terms of the deed. The residuary clause was not a bequest of residue in the ordinary sense, that being a bequest of a whole estate burdened with the debts and legacies— Storie's Trustees v. Gray and Others, May 29, 1874, 1 R. 953. The residuary clause carried only the residue as ascertained at a particular date, in a particular way, and “over and above the said special fund of £60,000.” The residue and the special fund were here as distinct and separate as if there had been two separate trust deeds. (2) The beneficiaries in the special provision (the second, third, and sixth parties) were equally excluded by the terms of the deed. The terms of the bequest to George Strachan's daughters in the sixth trust purpose implied merely a liferent. Though words importing fee occurred, they were restricted to a liferent by other words in the same clause, and not, as in Lindsay's Trustees v. Lindsay, December 14, 1880, 8 R. 281, by words in a subsequent and distinct part of the deed. This liferent was granted to the four daughters “severally and respectively,” and the mention of survivors related only to survivance of the testator. The same considerations applied to the initial clause of the seventh trust purpose, disposing of the liferent. The liferent of one-fourth vested in each of the four daughters at the testator's death, and on the death of one of the four there was no accretion. “Share and share alike” excluded accretion— Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191. The fee of each fourth went to the liferentrices' children, if any, and if none, to her appointee, provided she made an appointment. But failing these contingencies, it fell into intestacy. It could not be maintained that the liferent clause had a different meaning where a deceasing daughter left children from what it had where she left none; and whatever its meaning was it must apply where children were left, because the bequest to children was “subject to said liferent as hereinbefore expressed.” Clearly therefore there was no accretion either of liferent or fee. Therefore (3) the heirs in mobili-bus ab intestato of the testator were entitled to succeed. No doubt the law was unfavourable to intestacy, but where it clearly appeared that a testamentary provision had failed, and that the fund was not otherwise disposed of, intestacy was inevitable— Fulton's Trustees v. Fulton, February 6, 1880, 7 R. 566. Here it was natural that a testator who preferred strangers appointed by the liferentrices to the fiars under the deed should similarly prefer his own next-of-kin ab intestato.

Argued for fifth parties—There was no vesting of their shares in the nieces who died— Byron's Trustees v. Clark, November 26, 1880, 8 R. 142. There was no accretion— Paxton's Trustees, July 16, 1886, 13 R. 1191, and Stobie's Trustees, 15 R. 340. Intestacy was to be avoided— Aberdeen's Trustees, March 19, 1870, 8 Macph. 750. The residuary legatee was entitled to every thing that in the event turned out not to be well disposed of by the testator—Jarman (4th ed.) i 761.

Argued for sixth parties—Miss Jane Strachan's next-of-kin were entitled to a fourth of the special fund. To that extent she had a right of fee, or, at any rate, a general power of disposal which she had not exercised— Alves v. Alves, March 8, 1861, 23 D. 712.

At advising—