Scottish Court of Session Decisions

By trust-disposition and settlement dated 14th January 1848, Mr James Turner, flesher, Glasgow, conveyed to trustees his whole estate heritable and moveable. After directing his trustees to make payment to his wife of an annuity of £70, and to allow her the liferent of his house, and to pay an annuity of £20 to his second son James Turner, the truster proceeded — “After implementing and fulfilling the foregoing purposes of the trust, I direct my said trustees to hold the residue and remainder of my means and estate in equal proportions, share and share alike, for behoof of the children already born or who may yet be born to me (exclusive always of the foresaid James Turner, whom I hereby debar from any share or interest in said residue), and the survivors and survivor of them, but in liferent only for their respective

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liferent use allenarly, and for behoof of the respective issue of my said children per stirpes in fee. But I hereby provide and declare that in the event of any of my said children predeceasing me (excluding always the foresaid James Turner) leaving issue of his or her body, such issue, if surviving at the time of my death, shall succeed to the share of said residue which would have fallen to the parent in liferent and his or her issue in fee had such parent survived me; and in the event of the death of any of my said children, whether the same shall happen before or after my own death, without leaving issue, the share of such deceasing child or children shall go and belong in equal proportions to my surviving children, excluding always the said James Turner, the families of a deceased child or children representing the parent and succeeding to the share that would have fallen to such parent if in life.” The truster then proceeded to declare that these provisions were to be in full of the legal claims of his wife and children.

The truster died on 2nd April 1861 survived by the following children: William Turner, James Turner, George Turner, Alexander Turner, Joseph Turner, Agnes Turner or Young, and John Turner. Six of these were entitled to participate in the liferent of the residue, James being debarred. Of these the only survivors at the present date are George Turner and Mrs Agnes Turner or Young. John Turner died in 1883, and Alexander in 1890, both without issue; Joseph Turner died in 1867 leaving two sons and three daughters; William Turner, who died in 1895, had two children who predeceased him leaving issue.

On the death of William his grandchildren claimed that their parents had each a vested right of fee in one pro indiviso half of the share of residue liferented by William, and that they were entitled to receive a corresponding proportion of the income of the residue so long as it remained in the hands of the trustees. A special case was presented by (1) the trustees of James Turner; (2) George Turner; (3) Mrs Agnes Turner or Young; (4) the children of Joseph Turner; and (5) the grandchildren of William Turner.

The questions submitted to the Court were—“(1) Does the income of the residue of the late James Turner's estate, so long as such residue remains in the hands of the trustees, fall to be divided equally between the second, third, and fourth parties per stirpes? or (2) Does it fall to be divided equally between the second, third, fourth, and fifth parties per stirpes? (3) Have the fifth parties now a vested right in the fee of the share of residue of which their grandfather William Turner possessed the liferent?

Argued for the first four parties—The word “issue” did not in this case include grandchildren, and accordingly the provision to the issue of the truster's children did not cover the case of the fifth parties. Until the decision in Young's Trustees v. M'Nab July 13, 1883, 10 R. 1165, there was no technical meaning attached to the word “issue.” From the dicta quoted in that case it appeared that in England it had a technical meaning “in the language of lawyers,” which covered descendants. But here at any rate it must be construed as a term of popular language, and as such it meant only children, as was held by Lord Shand at p. 1171 of Young's Trustees. It was true that in Hall's Trustees v. Macdonald, July 24, 1893, 20 R. (H. of L.) 88, there were dicta to the opposite effect, but that was a question of the pactional provisions in a marriage-contract, where there was a strong presumption that a man intended to provide for all his descendants, while in an ordinary will there was no such presumption. The whole tenor of this settlement indicated that the words “issue of his or her body”—issue being limited in this way—did not include grandchildren. In the latter part of the clause the term “families” was used, evidently embracing the whole stirpes, and was in significant distinction from the term “issue” above.

Argued for the fifth party—The principles laid down in Hall's Trustees v. Macdonald were of general application; indeed, with regard to a will they were a fortiori of the case of a marriage-contract. Accordingly the construction there given overruled the expression of opinion in Young's Trustees, and must govern the present case; and the term “issue” must in its primary sense be held to include “grandchildren”— Leigh v. Norbury, February, 1807, 13 Ves. 344. That being so, there was nothing in the terms of this deed to prevent that ordinary meaning from being given effect to. On the contrary, the context was all in favour of this view, for this was a provision per stirpes, with nothing to indicate that it was to be cut off at one particular generation. In Irvine v. Irvine, July 9, 1873, 11 Macph. 892, there was a similar use of the word “families” with regard to a provision per stirpes.

At advising—