Scottish Court of Session Decisions

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Cite as: [1894] SLR 31_438, [1894] ScotLR 31_438

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SCOTTISH_SLR_Court_of_Session

Page: 438↓

Court of Session Inner House Second Division.

Friday, February 16. 1894.

31 SLR 438

Beveridge and Another (Spinks' Executors)

v.

Simpson and spinks.

Subject_1Succession
Subject_2Fee
Subject_3Liferent
Subject_4Intestacy.
Facts:

A testator left his whole estate to his two surviving daughters “during their lifetime, share and share alike,” and appointed two trustees “to see the provisions of this my will carried into effect.” He was predeceased by a daughter who left one child. Held that the testator conferred only a liferent on the surviving daughters, and died intestate as regarded the fee of his estate.

Headnote:

Thomas Spinks, watchmaker, Edinburgh, died on 24th March 1893 leaving a settlement in these terms—“I will and dispose of all my money, goods, chattels, household property, furniture, merchandise, stock-in-trade, and all my earthly belongings, etc., in favour of my daughters—Margaret Galloway Spinks, and Alexandrina Ramsay Spinks, during their lifetime share and share alike. I hereby appoint the following trustees to see the provisions of this my will carried into effect—John Beveridge, residing at 3 Comely Green Crescent, Edinburgh, and Alexander Miller, residing at Queensberry House, Edinburgh.” The trustees accepted office as executors and were confirmed. Mr Spinks was predeceased by
Page: 439↓
his wife and one daughter Mrs Euphemia Richardson Spinks or Simpson, who left one daughter Mary Ramsay Simpson, who along with the two daughters mentioned in the will survived the testator.

A special case was presented by (1) the executors, (2) the grandchild and her father as administrator-in-law for her, and (3) the surviving daughters, for the opinion of the Court on the following questions of law—“(1) Whether the third parties are entitled to immediate payment and conveyance of the deceased's whole estate, share and share alike, in fee; or whether the right of the third parties in the said estate is limited to a liferent. (2) Whether, in the event of it being held that the right of the third parties in the said estate is limited to a liferent, the survivor of these parties, on the death of one of them, is entitled to liferent the whole estate; or (3) Whether, in the event foresaid, on the death of each of the third parties, the share liferented by her will pass to the testator's grandchild, the said Mary Ramsay Simpson; or (4) Does the fee of the estate, on the death of either or both liferentrices, fall into intestacy; and in that event are the third parties entitled to two-thirds thereof.”

Cases cited— Mackinnon's Trustees, July 19, 1892, 19 R. 1051; Jamieson v. Lesslie's Trustees, June 19, 1889, 16 R. 807; Sanderson's Executors v. Kerr, &c., December 21, 1860, 23 D. 227; Clouston's Trustees v. Bullock, July 5, 1889, 16 R. 937.

At advising—

Judgment:

Lord Young—The testator by his settlement wills and disposes of his money, household property, and all his earthly possessions “in favour of my daughters,” naming them, “during their ifetime, share and sharealike,” and then he appoints certain persons as trustees. Now, I think it is impossible to disregard these words “during their lifetime” as being a limitation on the gift, and to read the clause as if it was an absolute gift to his daughters. In my opinion the will gives only a liferent to the daughters; their interest during their lifetime is protected by the appointment of trustees and there is intestacy as regards the fee. Had the will gone on, “I give all my property to A, B, and C, after my daughters' death,” that would have been disposing of the fee, but he dies intestate as regards the fee and the law of the matter is not doubtful.

The testator had three daughters, one of whom predeceased him but left a child. They are his heirs and must take the fee of his estate. Upon the decease of the two surviving daughters their two-thirds share of the fee will go as they may please to direct. With respect to the other third, upon the termination of the life interests that will go to the grandchild.

Each sister takes the liferent of one-half of the estate, and upon the death of one of them the half liberated will have to be disposed of as fee.

Lord Rutherfurd Clark—I concur.

Lord Trayner—I also concur. I confess I have had more difficulty in the matter than your Lordships, but I do not dissent.

The Court pronounced this interlocutor:—

“Answer the first alternative in the first question in the negative, and the second alternative of said question in the affirmative: Answer the second question in the negative and the fourth question in the affirmative: Find it unnecessary to answer the third question: Find and declare accordingly, and decern.”

Counsel:

Counsel for First and Third Parties— C. J. Guthrie. Agent— W. Marshall Henderson, L.A.

Counsel for Second Party— G. L. Macfarlane. Agents— Tait & Crichton, W.S.
1894