Scottish Court of Session Decisions

Hector Morrison, Inverness, who died on 4th October 1888, by a deed of settlement dated 4th June 1888 directed his trustees, inter alia, to pay “to the lawful children of my now deceased sister Mary Morrison or Macdonald £1000 sterling.” He also appointed his brothers and sisters and the children of the deceased Mary Morrison or Macdonald to be his residuary legatees, “but that only in shares proportionate to the legacies bequeathed to each of them as before mentioned.”

Mrs Macdonald left nine children, one of whom, Mrs Margaret Macdonald, died on 7th November 1873 leaving four children—Norman, Donald, Angus, and Hector, who claimed under the settlement in respect that their mother, if she had survived the truster, would have been entitled to a share in the legacy and residue. The trustees accordingly raised a multiplepoinding, and called as defenders all the parties interested. The amount of the fund in medio amounted to about £3000.

Mrs Margaret Macdonald's children pleaded—“(1) The claimants being the

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whole children of the deceased Margaret Macdonald or Macdonald, who predeceased the truster, are entitled equally among them to the shares of the £1000 legacy and residue as claimed, and to which she would have been entitled had she survived the truster, she having been one of the children of the said Mary Morrison or Macdonald, to whom the same was bequeathed. (2) The testator being in loco parentis to the said Mrs Margaret Macdonald or Macdonald and to her children, the rule si institutus sine liberis decesserit applies.”

Upon 25th June 1890 the Lord Ordinary ( Trayner) repelled their claim, and preferred certain other claimants to the fund in medio.

“ Opinion.—… A good deal might have been said in favour of this claim, looking to the liberality with which the conditio has been applied in recent years, had Mrs Margaret Macdonald been alive at the date of the settlement. But as she was then dead (a fact of which the testator is not said to have been ignorant), and was not therefore one of the persons instituted to the legacy, I think there is no room for the application of the maxim which sets up an implied conditional institution. ‘There must be a legatee instituted in the first instance, otherwise there can be no conditional institution either under the express terms of the deed or under the implied condition” (per Lord Cowan in Rhind's Trustees, 5 Macph. 109). The law appears to be settled against the validity of a claim made under circumstances similar to those I am now dealing with— Wishart, M. 2310; Sturrock, 6 D. 117; and Rhind's Trustees, supra; M'Laren on “Wills, &c., i. 489. There is this further view against any supposed or implied intention on the part of the testator to favour the present claimants, that he specially provided for the case of two nephews, while he made no provision for the present claimants, whose mother, the testator's niece, had died. The grounds on which I have held that the claimants are not entitled to any share of the legacy equally exclude them from any share of the residue.”

Norman Macdonald and his brothers reclaimed, and argued—This legacy was left to a class, of which Margaret Macdonald was a member, and therefore she was instituted. It was plain from the terms of the settlement that the testator had inteded to benefit all the children of his sister, and therefore the descendants of a deceased child ought to get the benefit which their mother would have had. The case of Wishart turned wholly upon the definition of the word “children,” while in the case of Rhind's Trustees it was found that the testator was not in loco parentis to the parties claiming; there was, however, no such doubt here. The residue followed the same rule as did the legacy.

At advising—