Scottish Court of Session Decisions

Andrew Tait junior, baker in Edinburgh, died upon 6th February 1849.

By his trust-disposition and settlement, dated 30th January 1849, “for the love, favour, and affection which I have and bear to my relatives after mentioned,” he gave, granted, and disponed his whole estate, heritable and moveable, to certain trustees named therein, for the following purposes, inter alia—(1) Payment of debts. (2) “That my said trustees, or the trustees acting for the time, may have and hold the residue of the means and estate hereby conveyed, or at their discretion convert the same into cash, and in either case take the destination of the means and estate or proceeds thereof to themselves for the liferent use of my sisters, Jane Tait or Belfrage, Christina Tait or Stenhouse, Ann Tait, and Margaret Tait, equally, and for their children respectively in fee: And declaring that in the event of the decease of one or more of my said sisters without children, her or their share shall be held by my said trustees for the liferent use of the survivors and their children in liferent and fee as aforesaid.”

He was survived by his four sisters mentioned in the settlement. His estate when realised amounted to about £3200.

The truster's four sisters enjoyed the liferent of the trust-estate equally between them until Ann Tait died upon 24th March 1856 without leaving issue. Upon her death her share was liferented by her surviving sisters. Margaret Tait or Taylor or Monteith died on 18th February 1892 survived by three children, and the fee of the one-third share of the truster's estate liferented by her was divided among them. Mrs Christina Tait or Stenhouse died upon 18th March 1893 without leaving issue, and questions having then arisen as to the disposal of the share liferented by her, a special case was presented. The parties were (1) Andrew Tait junior's testamentary trustees; (2) Mrs Monteith's children; (3) Mrs Jane Tait or Belfrage, the truster's surviving sister; (4) The trustees of the deceased William Christie as assignees of Andrew James Belfrage, a son of Mrs Belfrage; and (5) Jane Belfrage, a daughter of Mrs Belfrage.

The questions for the consideration of the Court were—“1. ( a) Does the liferent of the share formerly liferented by Mrs Stenhouse accresce and belong to Mrs Belfrage, the third party; or ( b) does the liferent of one-half only of said share accresce and belong to her 2. If branch ( a) of question 1 be answered in the affirmative, does one-half of the fee of the said share formerly liferented by Mrs Stenhouse vest in the second parties, the children of Mrs Monteith, and the other half vest in the fourth and fifth parties, as children (as in right of a child) of Mrs Belfrage, equally between them; or does the fee of the whole of the said share vest in the fourth and fifth parties? 3. If branch ( b) of question 1 be answered in the affirmative, does one-half of the said share formerly liferented by Mrs Stenhouse fall at once to the second parties, and the fee of the other half, subject to a liferent to Mrs Belfrage, to the fourth and fifth parties, equally between them?”

Counsel for the third and fifth parties argued—The words “the liferent use of the survivors and their children,” &c., must be taken in their ordinary signification, and that being so the whole share of the estate liferented by Mrs Stenhouse passed to her sister Mrs Belfrage in liferent, and on her death the fee went to her children, excluding Mrs Monteith's children. The case was really ruled by Ward v. Lang, July 13, 1893, 20 R. 949, which followed on the cases of Forrest's Trustees v. Rae, December 20, 1884, 12 R. 389; and Hairsten's Judicial Factor v. Duncan, July 14, 1891, 18 R. 1158.

Counsel for the fourth party concurred in the above argument.

The second parties, Mrs Monteith's children, argued—The truster began his deed by setting forth the love, favour, and affection he bore towards his relatives; that expression showed that he meant all to share equally in his estate. It was therefore absurd to suppose that his intention was that “the position of his descendants

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in the second degree was to depend on the accident of whether their parent died first or second”— Badger v. Gregory, L.R., 8 Eq. 78, per Vice-Chanceller James, p. 84, cited in Paterson's Trustees v. Brand, December 9, 1893, 31 S.L.R. 200. The result was that the term “survivors” used in the deed must be held to mean “others,” and therefore the children of the sister who had predeceased Mrs Stenhouse would take a part of her share— Ramsay's Trustees v. Ramsay, December 21, 1876, 4 R. 243.

At advising—