Scottish Court of Session Decisions

David Scott, farmer, Meadowfield, Duddingston, died on 26th August 1882, leaving a holograph trust-disposition and settlement dated 24th June 1870, whereby he disponed to the trustees therein named “all the heritable and moveable property which may belong to me at my death, as well as the new lease of Lochend and the leases of the other farms; also, so far as not impossible, in trust for the following purposes: After my death the farms to be carried on for the benefit of the family till the Martinmas and separation of the crop of the year that my son David is twenty-three. He is then to get North-field, Meadowfield, and Heriot, and the use of all the stock and stocking on these farms till his mother's death, upon payment of Three hundred pounds a-year as interest upon the stock and stocking. He will then (at his mother's death) get Lochend also, upon payment of fifty pounds a-year to each of his sisters so long as they remain unmarried during the currency of the lease. I leave to my two daughters and their heirs Three thousand pounds each, payable six months after the death of their mother. And in consideration of the foregoing arrangements, my son David is to succeed to whatever may remain of my estate and effects after these payments are made, whom failing to his wife in liferent, and her children in fee, whom failing to my two daughters in equal value between them, as to my trustees may appear the best division. I appoint and nominate my son David Francis Scott, as above, to be my executor. My wife to live either at Meadowfield or at Lochend as she may wish, and she is to have the liferent use of whatever furniture she may require; and if the profits of the farms and the interest on my other means will afford it, I desire that she may be allowed Five hundred pounds a-year; if not, as near that sum as my trustees may think prudent.” By subsequent codicil the sum left to each of the daughters was reduced to £2000.

The net value of the testator's personal estate was £4044, 18s. 4d., and at the time of his death he was tenant of the following farms—Meadowfield, Northfield, Lochend, and Heriot. The testator was survived by his wife, his son David Francis Scott, and two daughters. The son died on 6th August 1888 unmarried and intestate, and aged about thirty-six.

After his death a question arose as to whether the residue of the trust estate had vested in him, and the present case was presented in order to obtain the opinion of the Court on the following question—“Did the residue of the trust estate vest in the testator's son, and did the second party become entitled to one-third thereof in respect of his death without issue and intestate?”

The parties to the case were (1) the trustees under David Scott's settlement, (2) the widow, and (3) the two daughters of David Scott.

The party of the second part argued that the right to the residue vested in her son a morte testatoris, and that she therefore became entitled to one-third thereof so far as moveable in respect of his death without issue and intestate. The parties of the third part argued that the right to the residue did not vest in their brother, and that they were entitled under the destination in the will to take the whole residue as conditional institutes.

At advising—