Scottish Court of Session Decisions

Mr James Galloway of Clayslaps, Stirlingshire, died on 29th August 1892, leaving a trust-disposition and settlement, dated 18th March 1882, by which he conveyed to trustees his whole estate, heritable and moveable. After directing his trustees to pay his lawful debts, &c., to pay the liferent of the residue to his widow, with power to the trustees to make advances to her out of capital, and to pay to his son William a legacy of £40 in respect that he had already received a sum equal to his share in the residue, the truster proceeded — “I appoint my trustees at the death of my said spouse to pay or divide the then free residue of my whole means and estate, heritable and moveable, real and personal, to and among my children, Margaret Galloway, Mary Galloway, Janet Galloway, Agnes Christina Galloway, and the heirs of my son, the deceased James Galloway, and that equally between them share and share alike, the same being payable only on their respectively attaining majority.”

The deed further conferred powers on the trustees, including the power to sell by private bargain or public roup the whole or any part of the estate.

The testator was survived by his widow and by his four daughters, who had all attained majority at the time of his death. His son James Galloway junior, who had predeceased the date of the settlement, left two sons, born in 1877 and 1879, who both survived the testator. The liferentrix, Mrs Galloway, died in August 1896. The estate consisted principally of two heritable properties, and after payment of the debts and other charges affecting his moveable estate, the latter was completely exhausted. The heritable properties were retained by the trustees until the death of the liferentrix, and were sold in 1897.

A special case to settle the question as to the distribution of the residue was presented by (1) Mr Galloway's trustees; (2) his four daughters; (3) James Forrester, the elder son; and (4) Robert Buchanan Galloway, the younger son of James Galloway junior.

The contentions of the parties as stated in the case were — “The second parties contend that on a sound construction of the trust-disposition and settlement the residuary clause imports an equal division, per stirpes, among the testator's children, the heirs of James Galloway taking the share of one child: Alternatively, and on the assumption of division per capita, they maintain that the term heirs falls to be construed secundum materiam subjectam, that the succession is wholly heritable, and that therefore the third party, as his father's heir in heritage, is alone entitled to participate with them. In either case the result, according to the contention of the second parties, is that the residue falls to be divided into five equal shares, of which they are entitled to four. The third and fourth parties contend that the estate is divisible into two equal parts, of which one falls to the second parties and the other to the heirs of James Galloway junior. Alternatively, the third party contends that the estate is divisible into five equal parts, of which four fail to the second parties and one to the heirs of James Galloway junior. In either case the third party maintains that the words ‘heirs of my son, the deceased James Galloway,’ must be read

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with regard to the nature of the estate succeeded to, that the share of his grandfather's estate falling to the heirs of his father is purely heritable, and that, as being heir in heritage of his father, he is accordingly entitled to the whole of the said share. The fourth party, on the other hand, maintains that, looking to the terms of the testator's settlement, the words ‘heirs of my son, the deceased James Galloway,’ must be construed as meaning heirs in mobilibus, or otherwise that the said words were intended by the truster to describe, and ought to be construed as meaning, the children of the said James Galloway; alternatively, and on the assumption that the term ‘heirs’ falls to be construed secundum subjectam materiam, he maintains that, in virtue of the truster's settlement and the sale by the trustees, the succession is moveable. In either case he therefore contends that he is entitled to an equal share with his brother of whatever portion of the residue falls to the heirs of the said James Galloway. Alternatively to the contention that the residue is divisible into two parts, the fourth party accordingly contends that it is divisible into six parts, of which four fall to the second parties and one to each of the third and fourth parties.”

The questions submitted for the judgment of the Court were — “(1) Is the residue of the trust-estate divisible into two equal parts, of which the second parties are entitled to one, and the heirs of James Galloway junior to the other? Or (2) Is the said residue divisible into five equal parts, of which the second parties are entitled to four, and the heirs of James Galloway junior to the remaining part? Or (3) Is the said residue divisible into six equal parts, of which the second parties are entitled to four, the third party to one, and the fourth party to one? (4) In the event of either the first or second question being answered in the affirmative, does the share falling to the heirs of James Galloway junior belong exclusively to the third party, or is it divisible equally between the third and fourth parties?”

Argued for third party — The word “heir” when used in settlements must be read according to the nature of the subjects which were being dealt with — Blair v. Blair, November 16, 1849, 12 D. 97; Mitchell's Trustees v. Waddell, Dec. 7, 1872, 11 Macph. 206. In the present case the subjects consisted wholly of heritage, and it could not be said that there had been conversion, since there had been vesting a morte, and the properties had not been sold till after the death of the liferentrix. Accordingly “heir” must be read as meaning heir in heritage. The cases in which “heirs” had been read to mean “children” were quite distinguishable from the present— Matthew v. Scott, February 21, 1844, 6 D. 718; Baillie v. Seton, December 16, 1853, 16 D. 216.

Argued for the second parties—1. It was true there was a presumption in favour of a division per capita, but that was easily rebutted— M'Courtie v. Blackie's Children, January 15, 1812, Hume 270; Inglis v. M'Neils, June 23, 1892, 19 R. 924. Here the persons named were all of one class, and nearer relations to the testator than the heirs of his deceased son, and that fact was in favour of a division per stirpes. 2. Alternatively, as “heir” must be read to mean “heir of heritage,” there were only five to divide among, and so the same result was produced— Aitken v. Munro, July 6, 1883, 10 R. 1097,

Argued for fourth party—1. This was a case of an original bequest to the issue of a predeceasing son as members of the class to be favoured along with the surviving children. It was the general rule in such cases, when it was stated that there was to be equal division among all favoured, that the division was per capita — Laing's Trustees v. Sanson, November 18, 1879, 7 R. 244; M'Courtie v. Blackie's Children, supra. 2. The words of the deed “pay and divide” must clearly refer to sums of money to be paid at different dates, and not to heritable estate, and accordingly it must be held that there was conversion — Brown's Trustees v. Brown, December 4, 1890, 18 R. 185; Kippen's Trustees, March 20, 1889, 16 R. 668; Baird v. Watson, December 8, 1880, 8 R. 233; Somerville's Trustees v. Gillespies, July 6, 1859, 21 D. 1148; Angus v. Angus, December 6, 1825, 4 S. 279.