Scottish Court of Session Decisions

By trust-disposition and settlement dated 6th April 1878 Mrs Christina Stephen or Thomson, widow of Charles Duirs Thomson, disponed her whole estate, heritable and moveable, belonging to her at the time of her death, to trustees for the following purposes—(1) To realise her whole estate, except so far as the same may be specially disponed; (2) to pay debts and funeral expenses; (3) to convey a house in High Street, Montrose, to her husband's brother J. S. Thomson in liferent, and to his cousin Alexander Thomson and his heirs in fee; (4) to deliver over or make payment of the following legacies and bequests; here followed legacies of specific articles. The deed then went on—“To each of my before-named trustees, the said David Kinnear Stephen, Alexander Thomson, and Oliver Ross, the sum of £100; to my nephews and nieces, the children of the deceased John Stephen, farmer, Commieston, my brother, as follows—to the said David Kinnear Stephen, the sum of £500; to Jane Thomson Stephen, the sum of £250; to Anne Kinnear Stephen, the sum of £250; to Johnston Stephen, the sum of £250; and to Mrs Jessie Forbes Stephen or Paterson, the sum of £150: Declaring that this legacy of £150 shall be paid to her irrespective of the conveyance by her in her antenuptial contract of marriage, as also the share of residue hereinafter bequeathed to her, and they shall not form part of the funds under said contract; to my said niece Christina Black, the sum of £100, over and above the provision hereinafter made for her; to my niece Mrs Jane Black or Allan, the sum of £250; to my nephew Charles Boswell Black, the sum of £250; to my nephew George Black, the sum of £750, on his reaching majority; to the said John Sharp Thomson, the sum of £250; to the said Alexander Thomson, the sum of £250; to my sister-in-law Mrs Mary Sharp Thomson or Savege, the sum of £250.” Then followed a number of legacies to persons not relatives, and at the conclusion of the list were added the words “all as mementos of me.” Thereafter followed legacies to charities, &c. (5) To invest £1000 for behoof of her niece Mrs Jane Hector or Compton, in liferent, the fee to be paid over after her death to her children when they attained majority. (6) To invest £2500 for behoof of her niece Christina Black in liferent, the fee to be paid over after her death to any children she might have when they attained majority—“And failing such child or children, or failing their reaching majority, I direct my said trustees to realise and pay over the said sum of £2500 as follows, viz.—to my said nephew George Black, the sum of £1000;

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to my said niece Jane Black, the sum of £750; and to my said nephew Charles Boswell Black, the sum of £750; declaring that if the succession thereto shall open to my said nephews and niece, the sums falling to them shall be held to have vested in them at the time of my death; and declaring also that if the said Christina Black shall predecease me, the said sum of £2500 shall form part of the residue of my means and estate.” (7) In the event of her death before George Black reached majority, to expend £500 in his maintenance and education; and (8) “I direct my said trustees, as soon as my said estate has been realised, and the foresaid specific and pecuniary legacies made over or paid to the respective legatees, and the legacy duties and whole expenses of realising and dividing my said estate, heritable and moveable, paid thereout, and the free residue of my said estate ascertained, to divide such free residue equally among the said John Sharp Thomson, David Kinnear Stephen, Jane Thomson Stephen, Johnston Stephen, Anne Kinnear Stephen, Mrs Jessie Forbes Stephen or Paterson, Mrs Jane Black or Allan, Christina Black, Charles Boswell Black, George Black, and Mrs Jane Hector or Compton.”

Charles Boswell Black, George Black, Christina Black, and Jane Black or Allan, were the children of Jessie Stephen or Black, a sister of the testatrix. David Kinnear Stephen, Jane Thomson Stephen, Johnston Stephen, Anne Kinnear Stephen, and Jessie Forbes Stephen or Paterson, were the children of John Stephen, a brother of the testatrix. Jane Hector or Compton was the child of Mrs Jane Stephen or Hector, a sister of the testatrix.

Mrs Jane Black or Allan died on 7th January 1879, leaving a son, Stephen Strachan Allan. She was survived by her husband Alexander Miln Allan.

Mrs Christina Stephen or Thomson, the testatrix, died on 20th June 1882. At the time of her death her nephews and nieces were her nearest relatives.

Alexander Miln Allan, as tutor and administrator-in-law for his pupil son Stephen Strachan Allan, raised an action against Mrs Thomson's trustees for payment of (1) the sum of £250, being the amount of the legacy left to Mrs Jane Black or Allan by the fourth purpose of the trust deed, with interest at 5 per cent. from 20th June 1882, and (2) the sum of £172, 8s. 7d., being the estimated amount of the share of residue left to Mrs Allan by the eighth purpose of the deed with interest thereon from 20th June 1883, or alternatively, in the event of it being found that the pursuer as tutor and administrator-at-law foresaid was not entitled to the legacy of £250, the sum of £195, 3s. 1d. as the share of residue due him with interest from 20th June 1883.

The defenders lodged defences and pleaded—“(1) The conditio si sine liberis does not apply to the legacy or the share of the residue mentioned.”

On 10th January 1893 the Lord Ordinary ( Stormonth-Darling) pronounced the following interlocutor—“Repels the defences: Finds that the conditio si sine liberis decesserit applies both to the legacy of £250 and to the bequest of a share of residue in favour of the late Mrs Jane Black or Allan contained in the trust-disposition and settlement mentioned in the summons; and appoints the defenders, within fourteen days, to lodge an account showing the amount of the residue: Grants leave to reclaim.

“ Opinion.—The question is, whether the conditio si sine liberis decesserit applies to a legacy of £250, or to the bequest of a share of residue in favour of the late Mrs Jane Black or Allan contained in the will of the late Mrs Christina Stephen or Thomson, or to both bequests? I am of opinion that it applies to both.

It is clear, to begin with, that the testatrix and Mrs Allan stood in one of the relationships, that of aunt and niece, which admit of the application of the conditio. But that is not enough according to decisions. It must further appear, from the terms of the will itself, that the testatrix has placed herself in loco parentis, or in other words, that the will is of the nature of a family settlement, as opposed to a mere series of bequests in favour of selected and specially favoured individuals.

It seems to me that Mrs Thomson's will satisfies these requirements. It is framed, like many ladies' wills, on the principle of disposing of the bulk of her estate by legacies of specific sums, rather than on the principle (more common among men) of leaving the bulk of the estate to be carried by the clause of residue. The effect of the deed viewed as a whole is to give the large proprtion of the estate to all the nephews and nieces of the testatrix, who were the nearest relations she had at the time when the will was made. I was informed by the parties that her estate was of the value of about £15,000, and that the legacies to strangers in blood and charities amounted to about £3500. All the rest, in one form or other, went to her nephews and nieces.

As regards the residuary clause, therefore, I do not think there can be much doubt. It is true that the nephews and nieces are called nominatim, and this might have been a circumstance indicating delectus personce if any of them had been left out. But none are left out. It is also true that a brother-in-law takes an equal share of the residue along with the nephews and nieces. But that, surely, does not derogate from the assumption by the testatrix of the parental character towards those to whom the law concedes that the parental character may be assumed.

The legacy of £250 might have to be distinguished from the bequest of residue, if there were anything in the will to show that it was given merely out of personal favour to the institute. But there is nothing. All the nephews and nieces receive legacies. No doubt these are of varying amounts, and under varying conditions, for two of the nieces get merely a liferent

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and their children the fee, while all the others get capital sums. But these very specialties occurred in the case of Bryce's Trustees, 5 R. 722, and yet the conditio was held to apply. I am unable to distinguish that case from the present. It seems to me that the legacy to Mrs Allan was given to her on account of relationship, and that it formed a material part of the provision which the testatrix thought proper to make for her.

A good example of the opposite kind of legacy is afforded in this very deed by the bequest in favour of one of the nephews of £100, in the character of trustee. To that, undoubtedly, the conditio would not apply.

The pursuer, who is father and administrator-in-law of Mrs Allan's pupil child, is therefore, in my view, entitled to prevail, but as the parties are not agreed as to the amount of the residue, I shall appoint an account to be put in before giving decree.”

The defender reclaimed, and argued—The conditio si sine liberis applied neither to the legacies or to the residue. (1) As to the legacies—They were not of the character of provisions, but were of a discriminating character of different amounts, and were not given to the nephews as a class. No legacy had been left to Mrs Compton one of the nieces of the testatrix, a legacy had been left to another niece “over and above the provision hereinafter made for her,” and all the legacies were left to nephews and nieces nominatim, and to fifty other people not relations of the testatrix at all. The legacies were also left “as mementoes of the testatrix. All these facts showed that the testatrix had not left the legacies to her nephews and nieces as a class, and acting in loco parentis to them, but as special and personal gifts to each nephew and niece named— Greig v. Malcolm, March 5, 1835, 13 S. 607; Wilkie v. Jackson, July 9, 1836, 14 S. 1121; Hamilton v. Hamilton, February 8, 1838, 16 S. 478; Douglas' Executors, February 5, 1869, 7 Macph. 504; Bogie's Trustees v. Christie, January 26, 1882, 9 R. 453. Bryce's Trustees, March 2, 1878, 5 R. 722, was distinguished from this case, as there the legacies were left solely to nephews and nieces. Here they were only given as mementoes to the nephews and nieces named, along with other strangers. (2) As to residue—The arguments on the question as to the legacies applied to the residue, although with diminished force. This was not a general settlement dividing the property of a testatrix among her nephews and nieces as a class, but it gave sums of varying amounts to each nominatim, and left the residue to them also nominatim, a share of the residue also going to a person who was not a blood relation of the testatrix at all.

Argued for pursuer—In order that the conditio si sine liberis should apply to such a settlement as the present, two conditions must concur—(1) the settlement must be universal, and (2) there must be no delectus personæ. Both conditions were fulfilled here. This was a universal settlement. It was also a family settlement, meaning thereby such a settlement as a parent would have made, looking to the circumstances of each member of the family benefited. Opinion of consulted Judges in Hall v. Hall, March 17, 1891, 18 R. 698. Three-fourths of the property of the testatrix went under the testament to the next-of-kin of the testatrix. The case of Bryce's Trustees, was precisely on all fours with this. In that case, as in the present one, the amounts left to nephews and nieces under the settlement varied, and bequests were left to persons outside the favoured class. It was said that the beneficiaries here were called nominatim. But that did not by itself prevent the conditio from applying— Dixon v. Dixon, June 10, 1836, 14 S. 938—February 9, 1841, Robertson's Appeals, 1; Wilkie v. Jackson, supra; Thomson's Trustees v. Robb, July, 10, 1851, 13 D. 1326. The legacies in this case were the real provisions to the nephews and nieces, the residue was a mere addition. The Court had often held that the conditio applied to legacies. The argument against the application of the conditio si sine liberis to residue was much weaker. The only consideration that might tell against its application was, that the brother of the testatrix's husband had been given a share of the residue along with the nephews and nieces. But the inclusion of a relation would not exclude the application of the conditio.

At advising—