Scottish Court of Session Decisions

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Cite as: [1892] ScotLR 29_645, [1892] SLR 29_645

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, May 14. 1892.

29 SLR 645

Fleming and Others (M'Culloch's Trustees)

v.

M'Culloch and Others.

Subject_1uccession
Subject_2Residue
Subject_3Accretion
Subject_4Issue of Predeceasing Legatee.
Facts:

A testator directed his trustees to convey the residue of his estate equally to and for behoof of his brothers and sisters who might survive him, jointly, with the lawful issue of any who might have predeceased him leaving issue, the division to be per stirpes; declaring that the share of his sister Isabella should be restricted to an alimentary liferent, and that the fee of said share should be applied for behoof of her lawful children, whom failing for behoof of the testator's brothers and sisters who might be surviving at the date of her decease, jointly with the lawful issue of such of them as might have deceased leaving issue, the division being per stirpes.

By codicil the testator revoked “all share that my brother Richard would have been entitled to from my last will,” and left “that share that my brother Richard would have got” to his children.

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The testator's sister Isabella having survived him, but died without issue— held that Richard's children were entitled to one-third of the share life-rented by her, in respect that under the codicil they were entitled to everything to which Richard was entitled under the provisions of the will.

Headnote:

William M'Culloch died on 24th January 1880, leaving a trust-disposition and settlement dated 26th May 1873, and relative codicils. By his trust-disposition he conveyed his whole estate, heritable and moveable, to Alexander Fleming and others, as trustees, for the ends, uses, and purposes following, viz.—“In the first place, for payment of all my just and lawful debts, sickbed and funeral expenses, and the expenses of executing this trust: In the second place, for payment of such legacies as I already have or may hereafter bequeath by any writing, however informal, under my hand: And in the last place, my trustees shall hold, apply, pay, and convey the whole rest, residue, and remainder of my means and estate, and the interest and produce thereof, equally to and for behoof of my brothers and sisters who may survive me, jointly with the lawful issue of any of them who may have predeceased me leaving issue, the division being per stirpes: Declaring that the right and interest of my youngest sister Isabella M'Culloch, presently residing at Brodick, Island of Arran, in the share original or accrescing falling to her of my means and estate shall be, and is hereby restricted to an alimentary liferent of said share, not affectable by the debts or deeds of herself or of any husband she may marry, or attachable by the diligence of her or his creditors, and the fee of the said share shall be held and applied for behoof of the lawful child or children of the said Isabella M'Culloch, equally among them if more than one, whom failing for behoof of my brothers and sisters who may be surviving at the date of her decease, jointly with the lawful issue of such of them as may have deceased leaving issue, the division being per stirpes; but notwithstanding the foregoing declaration, my trustees shall have full power and liberty to apply the whole or such part of the capital or fee of said share as shall be necessary, or they may think proper, for the alimentary support and benefit of my said sister and her issue, or any of them.” …

By holograph codicil dated 27th May 1876 he provided—“I hereby revoke and cancel all share that my brother Richard would have been entitled to from my last will (as prepared by Mr Cowan); and I also ordain that he is not to be made a trustee, or, in fact, have anything to do with my estate, heritable or moveable property, business, or anything I may have at my death, but that his family may not altogether suffer owing to the faults of their father, for which they are not (poor children) accountable for, I leave that share (that my brother Richard would have got had he conducted himself towards me with anything like a brotherly feeling, of which, I am sorry to have to say, he is totally wanting, both as to truth and gentlemanly demeanour) to his family (James, Agnes, and Gartshore) to be equally divided, under direction of my trustees (their father to have no say in the matter), James and Gartshore to get their share in full when they arrive at twenty-eight years of age, and Agnes to have her share vested in my business, property, or whatever security the trustees may think proper, so that she will only receive the interest on her share, and this interest is not to be given to her till she is eighteen years of age; should she die without lawful issue, her share to go back to my brothers and sisters (always exclusive of my brother Richard); should I die before James and Gartshore are twenty-eight years of age, the trustees to have full power to give their share to them in part or whole as they (the trustees) may deem proper… . Should James and Gartshore die without lawful issue, their share to revert to my brother and sisters, not brothers.”

The testator was survived by his brothers Richard and Alexander M'Culloch, by his sister Isabella M'Culloch, by three children of Richard, and the children of a deceased sister Mrs Taylor.

Isabella M'Culloch married James Dunn, and died without issue on 27th January 1890. After her death questions arose as to who were entitled to participate in the share of residue liferented by her, and a special case was presented by (1) Alexander Fleming and others, the testamentary trustees of the deceased William M'Culloch; (2) the children of Richard M'Culloch; (3) Alexander M'Culloch and the children of the deceased Mrs Taylor; (4) the trustee on the sequestrated estate of Richard M'Culloch—in order to obtain the judgment of the Court on the following questions—“(1) Is the fourth party, as Richard M'Culloch's trustee, entitled to one-third, or, if not one-third, to what (if any) part of the share of residue liferented by Mrs Dunn? (2) Are the second parties entitled to one-third of said share? (3) Are the third parties entitled to payment of the whole share of residue liferented by the late Mrs Dunn?”

Argued for the third parties—The codicil revoked and cancelled “all share” to which Richard was entitled under the will—that was, it deprived Richard of all right and interest in the testator's succession. But it did not transfer more than the share originally destined to Richard to his children. The will dealt separately with and distinguished from each other the original shares of residue and the share accrescing on the death of Mrs Dunn, and if the testator in his codicil had meant to deal with both, he would have dealt expressly with the accrescing share. The words “that share” in the codicil could not therefore be held to include Richard's proportion of the share which lapsed on Mrs Dunn's death, and the case belonged to the same category as M'Nish, &c. v. Donald's Trustees, October 25, 1879, 7 R. 96. An instructive contrast to that case was to be found in
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Laing v. Barclay, July 20, 1865, 3 Macph. 1143, where a child was held entitled to all that her parent would have taken on survivance, it being there expressly declared that the issue should “represent and be entitled to the proportion which would have been payable to their parent.” The suggested construction of the words “that share” was supported by the following clause of the codicil, which contemplated only one period of payment. The third parties were accordingly entitled to the whole of the share liferented by Mrs Dunn.

Argued for the second parties—By the codicil the testator first deprived Richard of “all share” that he “would have been entitled to,” and then gave “that share” which Richard “would have got” to his children. The words of gift were thus almost the same as those used in Laing v. Barclay, supra, and differed materially from the words used in M'Nish v. Donald's Trustees, supra, where the direction was that the issue should take the share of their predeceasing parent. The case was also outwith the authority of such cases as Young v. Robertson, February 14, 1862, 4 Macq. 337, because this was a case not of conditional institution, but of direct gift. The second parties were therefore entitled to one-third of the share liferented by Mrs Dunn.

No argument was offered in support of the claim of the fourth party.

At advising—

Judgment:

Lord President—The question to be decided is, what meaning is to be given to the words “that share” occurring in the codicil dated 27th May 1876. Do these words include the share which accresced—that is, which lapsed on the death of Mrs Dunn—or are they confined to the original shares into which the residue was divided? I cannot think that the question is left in doubt, or that it requires that we should analyse the different classes of decisions cited to us. It appears to me that the catena of language between the settlement and the codicil is close and clear. We have to interpret the meaning of the words “that share that Richard would have got” following on the words “all share that Richard would have been entitled to.” Now, even if the words “that share” stood alone, they would be almost the equivalent of the words which were the subject of decision in the case of Laing v. Barclay, 3 Macph. 1143—that is to say, their fair reading and import is that what they describe is just everything that Richard would have taken under the will. But we are not confined to the argument founded on the words of the codicil, because the words “all share” again relate to the words used in the settlement, or rather the words in the settlement afford a sort of gloss on the words in the codicil. Treating of Isabella's share in the settlement, the testator talks of “the said share,” and considering that the codicil is drawn by the testator himself, and looking to the terms of the testament to which no doubt he would have regard, I think that in using the words “all share,” that the testator meant both the original and accrescing share to which Richard would have been entitled, and by the words “that share” he intended to give to Richard's children not merely the share originally destined to Richard, but also the accrescing share—in fact, everything which Richard would have taken under the settlement.

Lord Adam concurred.

Lord M'Laren—In this case apparently there is no doubt as to the true meaning and construction of the residuary clause in the original will, but the question is as to the extent and effect of the direction given in the codicil. The codicil is evidently prepared by the testator himself, and while sufficiently clear is not quite accurate in its language. It begins, “I hereby rovoke and cancel all share that my brother Richard would have been entitled to from my last will,” and I take that to mean “I revoke and cancel all provisions under which my brother Richard takes any share of my estate.” The words “all share” are sufficiently comprehensive in my view to include every right and interest arising to Richard under the will. Accordingly, when the testator goes on to say that he does not wish the children to suffer by the fault of their father, and proceeds to leave them “that share which my brother Richard would have got,” it is obvious that he has given to them precisely what he has previously taken from their father by the words of revocation.

The argument addressed to us was founded upon a distinction to be taken between the language of the destination in the will and the language in the codicil. It was said that the testator when he meant to deal with interests in his estate arising by accretion took care to say that these interests were included, and it is quite true that in the will, which is drawn by a lawyer, when he is dealing with the event of one of his brothers dying and leaving issue, he does say that the issue shall take the share, “original or accrescing,” which the parent would have taken. These words “original or accrescing” are properly introduced for the purpose of making clear what might otherwise have been in question, viz., whether accrescing shares were intended to be included. But it does not appear to me that there was any necessity for repeating these words in the codicil. Besides, it is announced at the outset of the codicil that what the testator is there proposing to deal with is all right and interest—so I interpret the words—that Richard would have taken under the will.

I should like to add, as the case of M'Nish has been referred to, that I should not be disposed to assent to the proposition that there is any artificial rule of construction which obliges us to hold where a residue is disposed of among different members of a family, that the children of one of the residuary legatees who may die leaving issue are cut out from what their parent would have taken by accretion.

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In some cases that might come to be a very large interest, because it might be that in a family of five or six all had died except one—one only, those who had died leaving issue—and to apply the doctrine that issue take only their parents' original share in such a case would reduce their interest to a fraction of what the testator really intended them to receive. When the case of M'Nish—which was cited as the strongest authority in support of that artificial rule—comes to be examined, it is seen that in that case the testator had begun by expressly giving over the interest of such of the legatees as might die without issue to the survivors, and so he dealt completely and exhaustively with accrescing shares. Consequently, when the testator goes on to say what is to be the benefit taken by the children of a predeceasing child, one must look to what he has already done in dealing with interests arising by accretion, and put such a construction upon the word “share” as will be consistent with what the testator has already announced. But I do not think that a decision on the terms of a will so expressed would be a decision to the effect that irrespective of the language there used the Court is to be hampered by a general rule that all gifts in favour of issue are to be strictly construed, and, if possible, cut down. I do not think the Court ever intended to lay down any rule adverse to the rights of the children of a predeceasing member of a family to whom a residuary bequest has been made, whose claims on the testator are precisely of the same nature as are those of other members of the family.

These observations are perhaps not necessary to the decision of the present case, but as the case of M'Nish was commented upon, I think it right to say that the question, although supposed to be concluded by authority, is one which I think must remain for subsequent consideration when a case, properly raising it, shall arise.

Lord Kinnear was absent.

The Court found that the second parties were entitled to one-third of the share of the residue liferented by Mrs Dunn; found it unnecessary to answer the other two questions, and decerned.

Counsel:

Counsel for Second Parties— C. S. Dickson.

Counsel for Third Parties— Ure.

Counsel for Fourth Party— Deas. Agents— Millar, Robson, & Company, S.S.C.
1892