Scottish Court of Session Decisions

By trust-disposition and settlement dated 3rd August 1883, Miss Mary Erskine Burnett, after providing for payment of debts and expenses, certain legacies, and an annuity, in the last place appointed her trustees “to pay over the yearly interest or profits arising on the whole remainder and residue of my estate … to my brothers Charles John Burnett, George Burnett, and Stuart Mowbray Burnett, equally among them … and to the survivors and survivor of them … but for their liferent use allenarly.” At the death of the survivor of the liferenters the trustees were to divide the residue among three nieces of the testatrix who were named.

By codicil dated 12th March 1890 Miss Burnett, after recalling the direction contained in her settlement as to the payment of an annuity, and giving other directions with regard thereto, provided as follows—“And considering that since the date of my said trust-settlement my said brother George has died, I do hereby recall the bequest made by me therein to him of a share of the residue of my estate, being one-third thereof, and ordain my trustees to pay over the said share which would have fallen to the said George Burnett, had he not so predeceased me, to Mrs Alice Stuart or Burnett, his widow, and with these alterations thereon I hereby confirm my said trust-disposition and settlement in every other respect.”

Miss Burnett died in April 1890, and after her death a third of the free yearly interest of the residue of her estate was paid to each of Charles John Burnett, Stuart Mowbray Burnett, and Mrs Alice Burnett, until the death of Stuart Mowbray Burnett in January 1893.

After the death of Stuart Mowbray Burnett Mrs Alice Burnett claimed payment of one-half of the yearly interest of the residue of Miss Burnett's estate, and this claim not being admitted by Miss Burnett's trustees Mrs Alice Burnett raised an action against the said trustees, of whom Charles John Burnett was one, concluding for declarator that, in virtue of the provisions of Miss Burnett's settlement and relative codicil, she was entitled, from and after the death of Stuart Mowbray Burnett, to the yearly interest arising on the residue of Miss Burnett's estate, along with the said Charles John Burnett, equally between them, during the joint lives of herself and Charles John Burnett, and for decree ordaining the defenders to make payment to her of the said yearly interest equally and share and share alike with the said Charles John Burnett during their joint lives.

The action was resisted by Miss Burnett's trustees, who pleaded—“(3) On a sound construction of said trust-disposition and settlement and relative codicil, the pursuer is only entitled to one-third of said yearly interest.

On 14th March 1894 the Lord Ordinary ( Kyllachy) found, decerned, and ordained in terms of the conclusions of the summons.

“ Opinion.—… I think the question is not without difficulty; but it is after all simply a question as to the truster's intention, and I have come to the conclusion that according to the just construction of the codicil of 12th March 1890, the pursuer Mrs Burnett is entitled to be put exactly in the same position as her husband would have held if he had survived. That is to say, she takes up not only the original share but also the accruing share to which under the settlement her husband would have succeeded.

I do not think that much help is to be derived from the analogy of the law applicable to conditional institution of children, either expressed or implied. The cases on that subject no doubt establish a rule of construction which, whether artificial or not, is well settled. But it is not a rule which I should desire to extend, and in the present case it is, I think, enough to say that

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the codicil under construction does not operate a conditional institution at all. The position just is that the original legatee having died before the testator, his widow, the pursuer, is by the codicil in question instituted in his place.

Again, I am not disposed to lay the stress which the defenders do upon the language in which the codicil recalls the bequest to Mr George Burnett. No doubt the bequest recalled is described as ‘the bequest made by me therein to him of the share of the residue of my estate being one-third thereof.’ But it is, I suppose, certain that the recal applied to the whole interest bequeathed to the deceased. Had Mr George Burnett been alive, and had it been desired to substitute his wife in his place, the language of the codicil would or might have been just the same, and yet I think it would in that case have been difficult to contend that Mrs Burnett should get the original share, while Mr Burnett should remain entitled to the share which accrued on his brother's death. I think, therefore, it is not doubtful that the words of recal cover the whole bequest, and that being so it appears to me that the words which follow, and by which the pursuer is instituted, must be read in the same sense.”…

The defenders reclaimed, and argued—It was not to be assumed that the testatrix intended her brother's widow to have the whole of the benefit which he would have taken had he survived, and the words of the codicil were inconsistent with such a view. The words of recal were quite unnecessary, because George Burnett was dead and the provision in his favour had lapsed. Their use was therefore to make it clear that the pursuer was only to take what was given her by the codicil. Now, what the codicil gave her was one-third of the interest of the residue, and that was therefore all she was entitled to. This conclusion was supported by the cases relative to the conditional institution of children, for it had been held in such cases that where either by express provision or by the operation of the conditio si sine liberis, children of a predeceasing legatee took their parent's share, that share was merely the original share provided to the parent, and did not cover accrescing shares in which the parent had he survived would have been entitled to participate— Henderson v. Hendersons, January 9, 1890, 17 R. 293. The language of the codicil in this case might be usefully contrasted with that used in M'Culloch's Trustees, May 14, 1892, 19 R. 777, where the substituted legatees were held entitled to participate in an accrescing share just as the original legatee would have been.

Argued for the pursuer—The intention of the testatrix was to recal the provision in favour of her brother George, and to substitute his widow in his place. The words “being one-third thereof,” applied to the bequest which the testatrix was clearing out of the way. The bequest to George's widow was contained in the subsequent words, and the meaning of the testatrix clearly was that the pursuer should take the same benefit as her husband would have taken had he survived. This construction was supported by the fact that the will contemplated only one period of distribution. The words “being one-third thereof” accurately described the amount of the share which George Burnett would have taken at the date of the codicil and also at the date of the death of the testatrix, and the only inaccuracy in the description lay in the fact that the third was capable of expanding into more. The codicil contained other inaccuracies, e.g., the bequest was described as a “share of the residue,” whereas it was only a share of the interest of the residue, and exact definition was not to be looked for in a loosely drawn deed of that kind. The inaccuracy of describing the pursuer's share as a third did not amount to a falsa demonstratio, but even if it did, the Court would give effect to what was the evident meaning of the testatrix— Macfarlan's Trustees v. Henderson &c., December 3, 1878, 6 R. 288; Forbes' Trustees v. Forbes, January 13, 1893, 20 R. 248; Whitfield v. Clemment, 1822, 1 Merivale, 402. Where there were inconsistencies in the description of a bequest, effect would be given to the leading words of description—Theobald on Wills, p. 94.

At advising—