Scottish Court of Session Decisions

Lyon Wilson, builder, Glasgow, died on 20th July 1888, leaving a trust-disposition and settlement dated 15th March 1880,

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by which he assigned and disponed his whole means and estate, heritable and moveable, to trustees for the purposes therein specified. The sixth purpose of the trust-deed was as follows—“I direct my trustees to hold the residue of my estate for behoof of my whole children equally in liferent for their liferent alimentary use allenarly, and for behoof of their respective issue in fee; declaring that the issue of any of my children who may die shall succeed always to the share the liferent of which is hereby provided to their parent, and that in such proportions as may have been appointed by their parent, and failing such appointment equally among them per stirpes.”

The testator was survived by five children, viz., Lyon Wilson, junior, Mrs Mary Barclay Wilson or Neill, and Misses Margaret Craig Wilson, Jane Wilson, and Christina Mackie Wilson.

Mrs Neill died on 12th December 1893, survived by a daughter, and leaving a general trust-disposition and settlement whereby she conveyed her whole estate to trustees.

Lyon Wilson, junior, died on 30th December 1893, survived by a widow, but without having had any issue. He left a trust-disposition and settlement, dated 23rd October 1891, by which he assigned and disponed to trustees his whole means and estate, heritable and moveable, “including therein the whole means and estate belonging to me under and in virtue of the trust-disposition and settlement of my father, the late Lyon Wilson, … and also the fee of the estate stated to be liferented by me therein, and which belongs to me in fee, inasmuch as the fee is not specially disposed of, and same falls to me as heir-at-law of my father, or otherwise in respect that the conveyance in my favour therein contained by the terms thereof implies a fee in my favour.”

In these circumstances questions having arisen with reference to the share of the trust-estate liferented by Lyon Wilson, junior, a special case was presented for the judgment of the Court by (1) Lyon Wilson's testamentary trustees; (2) Lyon Wilson, junior's, testamentary trustees; (3) Misses Margaret Craig Wilson, Jane Wilson, and Christina Mackie Wilson; (4) Mrs Neill's testamentary trustees; and (5) Mrs Neill's daughter.

The questions of law were—“(1) Has the share of the testator's estate bequeathed in liferent to Lyon Wilson, junior, fallen into intestacy? (2) If the foregoing query be answered in the affirmative, does the said share belong to the heirs ab intestato of the testator as at the date of his death? or (3) Does it belong to his heirs as at the death of the said Lyon Wilson, junior? (4) If the first query be answered in the negative, does the bequest in favour of the late Lyon Wilson, junior, imply a fee in his favour, and does the share bequeathed to him now fall to be conveyed to the second parties; or (5) Has the liferent of the said share accresced to the liferent of the shares already liferented by the third parties, the fee of the said share falling to their children, if any? or (6) Is one-fourth of the said share now payable to the fifth party, and has the liferent of the remaining three-fourths of the said share accresced to the liferent of the shares already life—rented by the third parties, the fee of the said three-fourths of the said share falling to their children, if any?”

Argued for third parties—(1) The liferent of the share of residue liferented by Lyon Wilson, junior, had accresced to them, and they were now entitled to payment thereof, equally among them, the fee falling to their children, if any, in the same way as that of the shares expressly provided to them by the settlement. Paxton v. Cowie, July 16, 1866, 13 R. 1191, did not rule the present case, because there was here a class of persons of unascertained number; they were neither named or sufficiently described for identification— Muir's Trustees v. Muir, July 12, 1889, 16 R. 954, opinion of Lord President Inglis, p. 956. The doctrine of accretion applied in order to prevent the testator being held to have died pro parte intestate— Paul v. Horne, July 5, 1872, 10 Macpb., opinion of Lord Neaves, p. 942. Where a liferent had been destined to members of the same family, share and share alike, the liferent interest of one dying had been held to accresce to the survivor— Barber v. Turner, February 6, 1835, 13 S. 422; Tulloch v. Walsh, November 23, 1838, 1 D. 94; Fergus v. Conroy, July 13,1872, 10 Macph. 968. If it were held that there was accretion in regard to the liferent, then in terms of the deed the children of the liferenters succeeded to the proportions liferented by their parents. (2) If the fee of the share liferented by Lyon Wilson, junior, had fallen into intestacy, it belonged to the heirs of the testator as at the death of the liferenter, and fell to be divided equally among the third parties and the fifth party as heirs in mobilibus and heirs —portioners at that date — White's Trustees v. Chrystal's Trustees, March 2, 1893, 20 R. 460. (3) If the fee of the said share were held to belong to the heirs of the testator at the date of his death, they were entitled as heirs, along with the fourth parties as representing one of the heirs in mobilibus of the testator at that date, to succeed per capita to such part of the fee as was moveable, the second parties as representing the heir in heritage taking such part as was heritable.

Argued for the second parties—(1) The share liferented by Lyon Wilson, junior, fell into intestacy, and belonged to the heirs of the testator ab intestato as at the date of his death. The estate was divided into as many shares as there were children, and, as children were never born to Lyon Wilson, junior, the fee of one share had not been disposed of and fell into intestacy. There was here no case for accretion; the rule laid down in Paxton's Trustees v. Cowie applied. The children in the present case were the testator's children, and were sufficiently described for identification— Fulton's Trustees v. Fulton, Feb.

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6, 1880, 7 R. 566; Simpson's Tr ustees v. Simpson, December 10, 1889, 17 R. 248. (2) Alternatively, the fee of the share life—rented by Lyon Wilson, junior, on a just construction of the testator's settlement, belonged to Lyon Wilson, junior, and had been conveyed to them by his settlement.

The fourth parties concurred in the third alternative of the third parties' argument.

Argued for the fifth party—(1) Under the destination in the settlement she was entitled to payment of, or at least was vested in, one-fourth of the capital of the share in question; (2) alternatively, she concurred in the second alternative of the third parties' argument.

At advising—