Scottish Court of Session Decisions

The late James Rae, grocer, Gilmerton, who died in 1887, by trust-disposition and settlement dated 1875 conveyed his whole means and estate, heritable and moveable, to trustees.

By the fourth purpose of the deed the trustees were directed at the first term of Whitsunday or Martinmas that should happen six months after the testator's death, in their own option, and as to them might seem more expedient, either to dispone the said heritable subjects, and assign or pay over the residue of his moveable estate to the parties thereafter named, or otherwise to sell and dispose of the subjects, and to divide and pay over the price thereof, as also the said moveable means and estate, to and in favour of Gilbert Rae, John Rae, and Christina Rae, his children, equally between them, share and share alike.

By holograph codicil dated 1883 the testator directed—“3rd, None of the properties or houses at Roslin or Gilmerton to be sold as long as Christina lives during her lifetime if she joines with a man and gets lawful married, but after her death the husband to have no claim on her money coming from Roslin or Gilmerton houses her money after her death to be divided between.” …

The truster was survived by his said three children. The heritable property was not sold by the trustees. Christina died in 1892, leaving a general disposition and settlement in favour of the children of her brother John, who had died in 1888.

Doubts having arisen as to whether the fee of one-third of the heritable estate given to her by the trust-disposition of 1875 had or had not been reduced to a liferent by the codicil of 1883, a special case was submitted to the Court by her father's trustees of the first part, her brother Gilbert Rae of the second part, the children of a deceased sister, Mrs Mary Rae or King (who had died in 1873), of the third part, and her executor-nominate of the fourth part, to have the following questions of law settled—“(1) Was Christina Rae's interest in the said heritable properties in Gilmerton and Roslin limited under the said holograph codicil to a third of the rents during her life, and did the fee of that one-third fall to be paid after her death (a) to the second party; or ( b) one-half thereof to the second party and one-half to the children of John Rae; or (c) one-third thereof to the second party, one-third to the children of John Rae, and one-third to the children of Mrs King? Or (2) Was Christina Rae, at the period of her death, vested, under the said trust-disposition and settlement and codicils of her father, in one-third of the fee of the said properties, and did that third share pass under her settlement to the children of her deceased brother John Rae?”

At advising—