Scottish Court of Session Decisions

A special case was presented to the Court by the trustees of the late George Henderson of Nunholm, who died at Ivy Bank House, Dumfries, on 6th March 1891, of the first part, his niece Susan Milligan Andson, his heir in mobilibus of the second part, his nephew William Andson junior, M.D., his heir-at-law, of the third part, and the office-bearers of Free Martyrs Church, Dumfries, of the fourth part, to have certain questions arising out of his trust-disposition and settlement, dated 27th December 1888, and recorded 13th March 1891, determined. The purposes of the trust were that the trustees, after payment of the testator's debts, should appropriate his means and estate as follows—“(First) That one-half of the clear proceeds arising from heritable properties belonging to me, as well as interest accruing from all my moveable property, shall be assigned annually or half-yearly to my said niece for her maintenance and private uses, and I also leave to her, during her lifetime, the use of my house at Ivy Bank, with all the furniture and other effects therein belonging to me; (next) that my said trustees shall devote £10 annually to provide a bursary …; (next) that the remaining portion of the annual proceeds of my estate shall be devoted towards Home Mission work in that part of Dumfries from King Street eastwards to English Street, and to be under the charge and management of the office-bearers of Free Martyrs' Church, Irving Street.’ … The heritable estate left by the testator consisted of the small property of Nunholm, near Dunfries, of his house at Ivy Bank, Dumfries, and of some shop and house property in Dumfries. The total gross rental thereof was £285 per annum, and the probable value £5200. The free moveable estate amounted to about £1900.

The questions of law submitted were—“1. Did Mr Henderson die intestate quoad any, and, if so, what part of his estate? And is the third party, as heir-at-law, and the second party, as next-of-kin, entitled to any, and, if so, to what part thereof? 2. Is the second party's right, under the primary provision of Mr Henderson's settlement, a right of liferent or of fee? 3. And, accordingly, is she entitled—(1) To the liferent of the house at Ivy Bank and to the fee of one-half thereof, or only to the liferent of the said house? (2) to the fee of the furniture, &c., in the house at Ivy Bank, or only to the liferent thereof? and (3) to the fee of one-half of the residue of the estate, or is she entitled only to the liferent, and, if so, whether to the liferent of one-half of the heritable estate and the whole moveable estate, or only of one-half the estate, both heritable and moveable? 4. Are the fourth parties entitled, subject to the second party's rights, as the same may be ascertained under the previous queries, and subject also to the provision of payment of £10 annually to found a bursary for a Free Church divinity student, to have the free proceeds of the whole estate paid over to them, to be applied in Home Mission work in Dumfries.”

The second party argued—That under the settlement she was entitled either (1) to the liferent of the house at Ivy Bank, whether she was entitled to the fee of one-half pro indiviso thereof or not, to the fee of the furniture in the said house, and to the fee of one-half of the free estate, heritable and moveable, left by Mr Henderson; or (2) to the liferent of Ivy Bank, to the fee of the furniture therein, and to the liferent of half the heritable, and the liferent of the whole moveable estate; and (3), but in the event only of Mr Henderson being found to have died intestate as to any part of his estate, to that part thereof which was moveable, she being his next-of-kin. Intestacy was to be avoided if possible, and liferent given to person so favoured as she was, implied a fee. The truster showed no intention to benefit his heir-at-law—M'Laren on Wills, i. 334; Williams on Executors (8th ed.) 1199; Sanderson's Executor v. Kerr, &c., December 21, 1860, 23 D. 227; Anderson v. Thomson, &c., July 17, 1877; Lawson's Trustees v. Lawson, July 17, 1890, 17 R. 1167.

The third parties argued—That the truster died intestate as regarded the whole or at least as regarded the half of his heritable estate, and he was entitled to succeed as heir-at-law. The idea of liferent alone predominated and did not here imply a fee— White's Trustees v. Whyte, June 1, 1877, 4 R. 786; in re Taber, July 5, 1882, 51 L.J. (Chan.) 721. “Remaining portion” meant the other half of the proceeds and was not equivalent to “the residue”— Green v. Pertwee, 1846, 5 Hare. (Chan.) 249; Wrench v. Jutting, 1841, 3 Bead. (Chan.) 521.

The fourth parties argued—That the second party was only entitled to the liferent of the house at Ivy Bank, and of the furniture therein, and of one-half of the residue of the estate. They further maintained that the testator effectually disposed of his whole estate, and that no part thereof fell into intestacy; and they claimed that the income of the whole estate, subject to the above-mentioned liferent rights of the second party, and to a burden of £10 a-year to be devoted towards providing a bursary in terms of the deed, should be paid over to them in perpetuity, to be applied towards Home Mission work in Dumfries, as directed by the testator. Alternatively, and in the event of it being held that Mr Henderson had failed to dispose of the whole of his estate, they maintained

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that in any case, with reference to the moveable estate, not more than one-half thereof, including therein the furniture in Ivy Bank house, fell into intestacy; and they claimed right to perpetual enjoyment of the proceeds of the whole estate not so falling into intestacy, similar in all respects to the above, except that the second party's liferent should be paid, as far as possible, out of the estate falling in intestacy. The division was tripartite not bipartite. “Remaining portion” was not equivalent to “the other half,” but was a bequest of residue. The niece only got the liferent of half the estate to enable her to keep up the house. Her interest accresced to them. They where fiars of the whole estate subject to her liferent— Playfair's Trustees v. Hunter, July 18, 1890, 17 R. 1241. In any case, they were fiars of that half they liferented. They relied upon the authorities cited by the second party, but were in a stronger position as liferenters in perpetuity.

At advising—