Scottish Court of Session Decisions

George Urie, blacksmith in Glasgow, died on 28th June 1885, leaving a trust-disposition and settlement dated 28th November 1876, and codicil thereto dated 5th May 1879, whereby he conveyed to trustees therein mentioned, for the purposes therein set forth, his whole means and estate, heritable and moveable, then owing and belonging to him, or which should be owing or belonging to him at his decease. The first trust purpose was payment of debts, and the second was payment of the whole free annual income of the estate to the widow during all the days of her viduity. The third purpose proceeded as follows:—“My trustees shall, upon the lapse of the foresaid liferent, by the death or second marriage of my said spouse, or upon my own death should she predecease me, hold, apply, pay, and convey the whole rest, residue, and remainder of my means and estate as follows, viz.:—One-fourth part or share thereof to and for behoof of my son John Urie for his liferent alimentary use allenarly, not affectable by his debts or deeds or the diligence of his creditors, and to and for behoof of his lawful children alive at the period of payment after mentioned, jointly with the lawful issue of any

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of his children who may have predeceased that period leaving issue (the division being per stirpes); whom failing, the lawful children alive at said period of payment of my other sons Thomas, George, and James (the division being per stirpes) jointly with the lawful issue of such of the children of my said sons, Thomas, George, and James as may predecease said period leaving issue, such issue being entitled equally among them to the share their parent would have been entitled to if in life; whom all failing, my own nearest heirs and assignees in fee.” Then followed similar provisions of one-fourth parts or shares in favour of each of the testator's sons Thomas and George and their children, and of the children of his son James (who had predeceased him). Then followed, inter alia, these declarations and provisions—“Declaring that the fee or capital of the provisions above conceived in favour of my grandchildren and their issue shall be payable only upon the lapse of the whole of the said liferents in favour of my said sons John, Thomas, and George Urie, and only upon the youngest of the whole of my said grandchildren attaining, if a male, the age of twenty-one years complete, or, if a female, attaining that age or being married, whichever of these events shall first happen: Declaring further, that until the arrival of said period of payment, my trustees shall pay or apply the whole or such part as they may think proper of the annual income or produce of the shares of residue prospectively falling to my said grandchildren, as and when the same shall be set free, to and for behoof of said grandchildren respectively, in such way and manner as to my trustees shall seem proper.… And I provide and appoint that the provisions hereby made in favour of my said grandchildren and their issue shall become vested interests in them at and only upon the arrival of the period of payment of the fee or capital thereof … Which provisions in favour of my said wife and sons and their descendants respectively are hereby declared to be and shall be accepted of as in full to my said wife and sons respectively of all terce of land, jusrelictæ, legitim, deadspart, portion-natural, and generally of the whole claims competent to them by, through, or in consequence of my decease: Declaring that, in the event of any of my said sons or their descendants repudiating this settlement, or by any means preventing it from taking effect in whole or in part, then such sons, as well as their descendants, shall forfeit their whole right and interest in those portions of my means and estate that I am entitled to dispose of, which right and interest shall in that event accresce and belong to such of my sons, the said John, Thomas, and George and their descendants, and the descendants of my said son James, as shall abide by this settlement and accept of the provisions herein contained.”

The codicil was as follows:—“I do hereby revoke the liferent provision of one-fourth part or share of the residue of my estate in favour of my son John Urie specified in the third purpose of the said trust-disposition and settlement, and instead I direct my trustees to hold and apply, pay and divide, the said one-fourth part or share of said residue to and for behoof of the lawful children alive at said period of payment of my said son John Urie, jointly with the lawful issue of any of his lawful children who may have predeceased that period leaving issue (the division being per stirpes); whom failing, the lawful children alive at said period of payment of my other sons, the said Thomas, George, and James Urie (the division being per stirpes) jointly with the lawful issue of such of the children of my said sons Thomas, James, and George as may predecease said period leaving issue, such issue being entitled equally among them to the share to which their parent would have been entitled if in life; whom all failing, my own nearest heirs and assignees: And with this alteration I confirm the said trust-disposition and settlement in every respect.”

The testator was survived by his widow Mrs Agnes Main or Urie, and by two sons John and George, and the issue of two deceased sons Thomas and James. Mrs Agnes Main or Urie died upon 14th April 1894 without having married again.

John Urie claimed and was paid his legitim, amounting to £2414, 9s. 6d., and granted a discharge dated 6th October 1885.

On the death of the testator's widow questions arose as to who were entitled to the income, and eventually the fee, of the one-fourth share provided by the codicil to the children of John Urie, and the trustees accordingly brought the present action of multiplepoinding.

Claims were lodged (1) for the lawful children of John Urie, (2) for the lawful children of Thomas Urie, and for George Urie and his children, and (3) for the lawful children of James Urie.

The claimants Thomas Urie's children, George Urie, and James Urie's children claimed to be ranked and preferred each to one-third of the income of the fund in medio, and the claimants Thomas Urie's children, George Urie's children, and James Urie's children also claimed the eventual fee of the fund equally among them per stirpes. These claimants also claimed alternatively a third share each of the sum paid to John Urie as legitim, but this claim was not at this stage under the consideration of the Court, and was ultimately abandoned.

They pleaded—“(1) On a sound construction of the trust-disposition and settlement and codicil of the said George Urie, the provisions in favour of the said John Urie and his lawful children have been forfeited by their father's claiming and accepting payment of his legitim, and the claimants, under the provisions in said trust-deed and codicil, are entitled to be ranked and preferred in terms of the first alternative of their claim.”

After a hearing in the Procedure Roll the Lord Ordinary ( Low) on 29th May 1896 issued the following interlocutor—“Finds that the right to the portion of the

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trust-estate bequeathed to the children of John Urie by the trust-disposition and settlement and codicil of his father George Urie, mentioned on record, has not been forfeited by the said John Urie having claimed and received payment of his legitim out of the trust-estate, and with that finding, appoints the cause to be enrolled for further procedure; meantime reserves all questions of expenses.”

Opinion—“The only question in this case with which I have at present to deal is, whether John Urie, by claiming his legitim, caused the provisions made for his children by the settlement of his father, the late George Urie, to be forfeited.

If the original settlement had not been altered, and if John Urie had repudiated the liferent thereby provided to him, and claimed legitim, I should have had difficulty in coming to any other conclusion, upon a construction of the clause of forfeiture, than that, not only John Urie's right of liferent, but also his children's right of fee, was forfeited.

But by the codicil the provision in favour of John Urie was revoked, and the question is, whether the clause of forfeiture applies to the case of a son who was not a beneficiary under the settlement claiming legitim?

It was argued that the language of the clause was wide enough to cover such a case, because it was declared that a forfeiture should take place, not only ‘in the event of any of my said sons or their descendants repudiating this settlement,’ but also in the event of their ‘by any means preventing it from taking effect in whole or in part.’ The argument was that by claiming legitim John Urie had prevented the settlement from taking effect.

It is quite certain that the clause, as originally framed, was intended only to apply to the sons—John, Thomas, and George—who were given a liferent interest by the settlement, because although another son—James—is mentioned in the settlement, he was dead, and his name is only brought in for the purpose of describing a class of beneficiaries, namely, his children. But the result of the codicil was to strike John out of the settlement as a beneficiary, and his name thereafter only remained in the settlement, like that of James, for the purpose of describing a class of beneficiaries. The question, therefore, whether the ‘said sons,’ to whom the clause refers, includes John, is a question of construction?

Now, the penalty for any of the sons repudiating the settlement, or preventing it from taking effect, is that ‘such sons, as well as their descendants, shall forfeit their whole right and interest in those portions of my means and estate that I am entitled to dispose of, which right and interest shall, in that event, accresce and belong to such of my sons … and their descendants … as shall abide by this settlement.’ That is a penalty which is only applicable to persons who have been given a right and interest in the succession, because the event contemplated is the repudiation of the settlement by a son or his descendants, and the penalty is the forfeiture of the right of the son and his descendants. The penalty, therefore, does not apply to the circumstances which have arisen. The truster has declared his intention if a son, for whom he has made a provision, repudiates the settlement, but he has not declared his intention if a son to whom he has given nothing claims his legitim.

No doubt, in order that his intention that John should get no part of his estate might be enforced, the truster might very well have stipulated that the children of John should take one-fourth of the estate only on condition that he should not claim legitim. The truster may, indeed, have believed that the clause of forfeiture would have that effect. But, in my opinion, that is not what the clause of forfeiture says. It is a clause which is framed upon the ordinary basis of a clause of forfeiture, the basis, namely, that an election is offered between conventional and legal provisions, and the forfeiture is to be incurred if the beneficiary chooses the latter and rejects the former. John therefore, who had no election given to him, does not seem to me to fall within the scope of the clause, and I am accordingly of opinion that the right of fee given to his children has not been forfeited.”

On 4th June the Lord Ordinary granted leave to reclaim.

The claimants Thomas Urie's children, George Urie and his children, and James Urie's children reclaimed and argued—John Urie by claiming his legitim had prevented his father's settlement, which was intended to control the succession to his whole estate from taking effect in part. The forfeiture had therefore been incurred, and his descendants as well as himself were deprived of all right under the will. The fact that John Urie was deprived of his liferent by the codicil did not make any difference. He was one of the said sons referred to in the clause of forfeiture, and there was nothing in the codicil to show that the testator intended that thereafter this clause should not operate upon John's preventing the settlement from taking effect. Indeed, with the alteration of depriving him of his liferent, the testator in the codicil confirmed the settlement in every respect. The undoubted intention of the truster was unfavourable to John, but if the respondent's contention received effect, he would get more than any of his brothers, and his children would be in no worse position than any of the other families. The construction which would give effect to the testator's wishes was entitled to prevail.

Counsel for the respondents were not called upon.

At advising—