Scottish Court of Session Decisions

Mr John Low, banker, Glasgow, died at Aberdeen on 26th July 1872. He was survived by two sisters—Mrs Margaret Low or Lawrie and Mrs Mary Low or Brebner—and by a sister-in-law—Mrs Low—all of whom at the time of his death had issue, but one daughter of Mrs Lawrie—Mrs Brown—had predeceased Mr Low, leaving children.

By a holograph testamentary writing dated 22nd May 1869 Mr Low disponed and conveyed his whole estate to trustees, whom he appointed his executors. He directed them to pay expenses, to realise investments, to pay certain legacies, and provided—“I desire the interest on the residue of my estate to be divided into three equal parts, and given to my two sisters Margaret Lawrie and Mary Brebner and my sister-in-law Mrs Low in half-yearly payments. The families of the annuitants to get the interest of their mothers until the death of the last annuitant, when at the ensuing money term the residue of my estate is to be divided into two parts—the one-half for the families of my two sisters (excluding the jus mariti of their husbands), and the other half to the treasurer of the Free Church for the Sustentation and College Funds equally.”

Upon 22nd April 1872 he executed a second holograph testamentary deed, in which he provided annuities of £200 to each of his sisters and one of £100 to his sister-in-law, free of legacy-duty; “to my niece Eliza Lawrie or Brown” (who predeceased the testator on 9th June 1859), “for family equally, £1000;” sums of £1000 and £2000 to other nieces; £100 to each of five namesons; and donations to charities, in all £7500. The deed then proceeded—

“Suppose my estate to realise	£20,000
Take off	7,500
	12,500

Interest at 4 p. c. on £12,000 would pay the annuitants, but if short, take out of capital.

“Balance left for further disposal.”

These deeds formed the subject of a special case, reported June 21, 1873, 11 Macph. 744. The Court held that both deeds were good testamentary writings and were to be read together, and that the residue of the estate had been competently disposed of by the first deed.

The executors realised the estate, paid the charges and legacies, and thereafter administered the estate for the payment of the annuities till the death on 15th January 1891 of the last annuitant, Mrs Brebner, the sister of the testator.

As the time had now come for the division of the residue, the trustees raised an action of multiplepoinding in the Sheriff Court at Aberdeen. They averred—“No question has arisen about the half of the residue that goes to the treasurer of the Free Church, but in regard to the division of the half of residue that was destined to the families of the testator's two sisters two questions have arisen, viz., first, whether the division is to be per capita or per stirpes, and second, whether the children of Mrs Eliza Lawrie or Brown, who predeceased the testator, represent their mother in her share as being part of the ‘family’ of the testator's sister Mrs Lawrie.”

The claimants were—1st, Mrs Whitworth and others, six children of Mrs Lawrie, the testator's sister, who were alive at the testator's death, who claimed that the fund in medio should be divided among the children of the testator's two sisters who were alive at the death of the last annuitant, and that it should be divided per stirpes; 2nd, the son of Mrs Lawrie and his assignee, who claimed that the fund should be distributed per capita; 3rd, the husband of Mrs Brebner, one of the annuitants, and his assignee, who claimed his wife's share on a division of the fund per stirpes; 4th, William Lundie and another, children of a son of Mrs Brebner by her first husband. Their father had predeceased the last annuitant; 6th and 7th, James Brown and others, the children of Mrs Margaret Lawrie or Brown, the daughter of Mrs Margaret Lawrie or Brown, the daughter of Mrs Margaret Lawrie, sister of the testator, but who had predeceased him, and the assignee of one of the children.

The last three claimants claimed the portion of the fund which would have fallen to their parents' share had they survived the last annuitant.

Upon 29th September 1891 the Sheriff-Substitute ( Brown) pronounced this interlocutor:—“Finds on a sound construction of the testamentary writings of the deceased John Low, that the residue of his estate forming the fund in medio, falls to be divided among the families of his two sisters Margaret Lawrie and Mary Brebner, excepting the family of the deceased Eliza Lawrie or Brown, the eldest daughter of the said Margaret Lawrie, per stirpes: Finds that the said Eliza Lawrie or Brown having predeceased the date of the deed of settlement was not instituted under it, and therefore that the claimants who derive through her take no benefit under the deed: Finds further, that the family of the said Eliza Lawrie or Brown are excluded from participating in the residue of the deceased John Low, by the special bequest of £1000 made for them under the deceased's second testamentary writing: With reference to the foregoing findings in law, ranks and prefers the claimants, John Low Brebner and the North of Scotland Bank, Limited, to one-fourth of the fund in medio: Ranks and prefers the claimants William H. Lundie and Mary Altinee Lundie or Ledward each to one-eighth of the fund in medio: Ranks and prefers the claimants

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Jane Lawrie or Whitworth, Sophie Lawrie or Clarke, Mary Lawrie or Pithie, Agnes Lawrie or Johnston, Henry Lawrie, Margaret Lawrie or Webster, and William Lawrie, each to one-fourteenth of the fund in medio: Refuses the claims lodged on behalf of the children of the said Eliza Lawrie or Brown, or their assignees and descendants: Finds the claimants John Low Brebner and the North of Scotland Bank, Limited, and William H. Lundie and Mary Altinee Lundie or Ledward entitled to expenses.

“ Note.—The two questions involved in this case are concisely and clearly stated in the summons of multiplepoinding by which the several claimants have been brought into Court, and the facts out of which they arise are of quite simple character. One of these, taking the order in which they were presented in argument, is whether the Brown and the Smith family, being the children and grandchildren respectively of Eliza Lawrie or Brown, a niece of the testator, have any interest in the residue of the estate forming the fund in medio? I am of opinion they have not and that they are excluded on two grounds. The first of these is, that the parent of the claimants having predeceased the date of settlement, she was never instituted under it, and therefore there is no room for the operation of the conditio si institutus sine liberis decesserit. This doctrine was fully recognised in the two leading cases— Sturrach v. Benny, November 29, 1843, 6 D. 117, and Rhind's Trustees v. Leith and Others, December 5, 1866, 5 Macph. 104, and was referred to and adopted in Blair's Executor v. Taylor, January 18, 1876, 3 R. 362, and in the very recent special case Hall v. Hall, March 17, 1891, 18 R. 690. I assume that all the circumstances concur that would otherwise admit the condition, viz., that the testator stood in loco parentis and was making a family settlement, and that the legatees were not nominatim instituted, but it seems not doubtful, on the authorities above quoted, that the family of Eliza Lawrie or Brown have no claim to the residue as deriving right through her. The second ground on which I reject the claim of the Brown and Smith family is, that a special provision was made for Eliza Lawrie or Brown's family, in view undoubtedly of the fact that they did not otherwise take under the settlement. An argument indeed was maintained in favour of the claimants on the terms of this special provision, it being urged that Eliza is dealt with by the testament precisely as her sisters Sophia and Mary are, a further indication of the intention of the testator that her family should also share in the residue being that a legacy is left to the Rev. John Brown as nameson. I am unable to adopt this view, because, on the contrary, I think it is clear that in view of the predecease many years before of Eliza Lawrie or Brown, the codicil of 22nd April 1872 left the legacy of £1000 to her family, the testator simply emphasising by the terms of his bequest that he had not forgotten his dead sister. In the view I thus take of the case it is not necessary to consider the doctrine laid down in Irvine v. Irvine, July 9, 1873, 11 Macph. 892.

The second question is, whether the division of the residue destined to the families of the testator's two sisters is to be per capita or per stirpes? This is a point undoubtedly of more difficulty, but after the best consideration I have been able to give it, I have come to be of opinion that the latter is the true rule of distribution. By the first writing the testator directed that the interest on the residue of his estate should be divided into three equal parts and given to the two sisters already mentioned and to his sister-in-law. By the second codicil these interests are converted into fixed annuities, but I apprehend that does not in any way affect the rule of division that now falls to be applied. What is important to note is how the testator in the first place deals with the interest of the residue. He gives that in three equal parts, and provides that the families of the annuitants are to get the interest of their mothers until the death of the last annuitant. The rule of construction is undoubted, that when a share of residue, whether original or lapsed, is given in liferent and fee to a person named and the children respectively, the division is per stirpes. There are here two liferents and the question practically is, whether that is ousted by throwing into the fee the liferent of a third person? But for the increment the division of the fee would certainly be per stirpes, and looking to the whole conception of the settlement and the manner in which the families of the testator's two sisters are dealt with in the first part of the deed, I think it would require words of a particularly distributive character to justify the division per capita for which the other claimants contend. The very contrary is the case for the testator continues to use the word ‘families,’ providing that the enlarged fee is to go to them equally. Both parties relied on the case of Richardson v. M'Dougall, March 26, 1868, 6 Macph. (H. of L.) 18, reported in the Court of Session in this branch of it (February 6, 1866, 4 Macph. 373).

I cannot see, however, how the supporters of a per capita division make out that they take any advantage from this case, because the doctrine expounded by the Lord Justice-Clerk as to the division of the fee was undoubtedly upset in the House of Lords. The judgment is distinctly so rubricked, and the point is specially dealt with in the opinions of the Lord Chancellor and Lord Westbury. But the Lord Justice-Clerk as Lord President, in the case of Home's Trustees v. Ramsay and Others, December 11, 1884, 12 R. 314, makes it quite clear how he understood the judgment of the House of Lords when he says that under a destination of residue in liferent and fee to a person named, and to children respectively, the distribution as per stirpes is settled by the case of Richardson v. Macdougall. I quite recognise the specialty in Home's Trustees v. Ramsay and Others, quoted as an authority by the claimants

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who have been preferred, that the share of a daughter dying without issue was given in liferent to her surviving sisters, and that it is necessary in the present case to go beyond the general principle which has been referred to, to the deed itself, to gather the testator's intention; but it seems to me, for the reason already assigned, that there is a clear indication of what that is, and that the general rule of law and the intention blend together. Reference was further made by the successful claimants to Laing's Trustees, November 18, 1879, 7 R. 244, and to the case of Cumming, January 13, 1891, 18 R. 380.”

Mrs Whitworth and others appealed.

Cases cited:—1. Who were included in the families of the testator's sisters— Low's Executors and Others, June 21, 1873, 11 Macph. 744; Irvine v. Irvine, July 9, 1873, 11 Macph. 892; Fyffe v. Fyffe, July 13, 1841, 3 D. 1205; M'Laren on Wills, i. 726; Gregory v. Smith, May 4, 1852, 9 Hare's Chan. Rep. 708; Pigg v. Clarke, July 31, 1876, L.R., 3 C.D. 673. 2. Should division be per Capita or per Stirpes— M'Courtie and Others v. Blackie's Children, January 15, 1812, Hume's Decs. 270; M'Kenzie v. Holte's Legatees, February 2, 1781, M. 6602; Grant v. Fyffe, May 22, 1810, F.C.; Bogie's Trustees v. Christie, January 26, 1882, 9 R. 453; Cunningham's Trustees v. Cunningham, January 13, 1891, 18 R. 381; Barnes v. Patch, June 27, 1803, Vesey's Chan. Rep. 603; Alexander v. Douglas, June 29, 1782, Romilly's Notes of Cases; Brett v. Hirten, July 22, 1841, 4 Beavan's Reps. 239.

At advising—