Scottish Court of Session Decisions

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Cite as: [1898] ScotLR 35_598, [1898] SLR 35_598

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SCOTTISH_SLR_Court_of_Session

Page: 598↓

Court of Session Inner House Second Division.

Thursday, March 17. 1898.

35 SLR 598

Bruce's Trustees

v.

Bruce.

Subject_1Succession
Subject_2Vesting
Subject_3Repugnancy
Subject_4Burden on Fee becoming Inoperative before Period of Payment — Conditio si sine liberis.
Facts:

A testator disponed and assigned the residue of his estate, heritable and moveable, to his two sisters nominatim jointly, and to the longest liver of them in liferent, and to his nephew J. in fee, whom failing his nephew T. in fee, whom failing his niece I. in fee, “but divisible in the events and in manner after mentioned,” whom all failing to his own nearest heirs in fee, declaring that on the death of the longest liver of the liferentrices, if either survived him, or, in the event of both predeceasing him, on his own decease, the residue of his estate, heritable and moveable, should be divided into as many equal parts and shares as there should then be existing in number of his nephews J. and T. and his niece I., and each of them then alive should be entitled to an equal share.

J. predeceased the testator, T. and I. survived him. Both predeceased the longest liver of the liferentrices, but both left children who survived her.

Held that the fee of the residue of the testator's estate vested wholly in T. a morte testatoris.

Headnote:

By disposition and deed of settlement dated 10th March 1853 Archibald Bruce of Bankton disponed “to and in favour of my sisters Mrs Isabella Bruce or Torrance, wife of George M'Mikin Torrance, Esquire of Threave, and Miss Margaret Jane Bruce, presently residing in Hillside Crescent, Edinburgh, jointly, and to the longest liver of them in liferent, for their liferent use allenarly, and to James Bruce, son of my deceased brother Thomas Bruce, Writer to the Signet, in fee, whom failing to Thomas Bruce, also son of my said deceased brother, in fee, whom failing to Isabella Bruce,
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daughter of my said deceased brother, in fee, whom all failing to my brother John Bruce, in liferent for his liferent use allenarly, and to my own nearest heirs in fee, heritably and irredeemably, all and whole my estate of Bankton … And farther and in like manner as aforesaid I dispone, assign, convey and make over to and in favour of my said sisters, Mrs Isabella Bruce or Torrance, and Margaret Jane Bruce, jointly and to the longest liver of them in liferent, for their liferent use allenarly, and the said James Bruce in fee, whom failing, the said Thomas Bruce in fee, whom failing, the said Isabella Bruce in fee, but divisible in the events and in manner after mentioned, whom all failing, to my brother John Bruce in liferent, for his liferent use allenarly, and to my own nearest heirs in fee, my whole other heritable estate and property and my whole moveable or personal estate, heirship moveables included, presently belonging or which shall belong to me at the time of my death..,. Declaring further, that on the death of the longest liver of the said Mrs Isabella Bruce or Torrance and Margaret Jane Bruce, if either survive me, and in the event of them both predeceasing me, then on my own decease, the whole of my heritable and moveable means and estate (excepting the lands and estate of Bankton and others hereinbefore specially described), but subject to and under burden of any legacies, bequests, or annuities left by me in manner foresaid, shall be divided into as many equal parts or shares as there shall then be existing in number of the said James Bruce, Thomas Bruce, and Isabella Bruce, and each of them then alive shall be entitled to an equal share—that is to say, if they be all then in life, in three equal parts or shares, or if only two be then alive, in two equal parts or shares, and in the said division, whoever of the said James Bruce, Thomas Bruce, and Isabella Bruce shall have succeeded to my said lands and estate of Bankton and others, will notwithstanding draw an equal part or share with the others or other; and if there should be only one of the said persons then alive, he or she shall be entitled to the whole of my said other means and estate along with the said lands and estate of Bankton.”

On 24th April 1867 Archibald Bruce died leaving the estate of Bankton and certain moveable estate. James Bruce, his nephew, predeceased him, but he was survived by his two sisters Mrs Torrance and Miss Margaret Jane Bruce, and by two children of his deceased brother Thomas, viz., Thomas Bruce and Isabella Bruce, the latter of whom had married Alexander Wilson on 9th March 1891 Archibald Bruce's next-of-kin at the date of his death were therefore his two sisters, Mrs Torrance and Miss Margaret Jane Bruce, and the children of his deceased brother, viz., Thomas Bruce and Mrs Isabella Bruce or Wilson.

Thomas Bruce married in July 1868, and conveyed all the personal property to which he might become entitled on the death of his aunts to his marriage settlement trustees. He died on 12th May 1890 survived by his wife and two children.

Mrs Isabella Bruce or Wilson died on 28th January 1897 survived by six children, and leaving a trust-disposition and settlement.

Mrs Isabella Bruce or Torrance died without issue on 11th March 1874, leaving a trust-disposition and settlement dated 16th January 1872, under which Miss Margaret Jane Bruce was appointed her residuary legatee. Miss Margaret Jane Bruce died on 19th November 1807, leaving a trust-disposition and settlement by which she conveyed her whole estate to trustees.

In these circumstances questions arose regarding the destination of the residue of Archibald Bruce's estate other than the estate of Bankton, and for the settlement of these questions a special case was presented to the Court by (1) Miss Margaret Jane Bruce's trustees, (2) Thomas Bruce's marriage settlement trustees, (3) Thomas Bruce's children, (4) Mrs Isabella Bruce or Wilson's children, (5) Mrs Isabella Bruce or Wilson's trustees, and (6) the judicial factor appointed on the trust-estate of Archibald Bruce.

The questions at law were—“(1) Does the said residue of Archibald Bruce's estate now fall to his heirs in mobilibus? Or (2) Does the said residue fall to be divided between the third and fourth parties equally per stirpes in virtue of the conditio si sine liberis? Or (3) Does two-thirds of said residue fall to the third and fourth parties equally per stirpes, and the remaining one-third to the testator's heirs in mobilibus? Or (4) Did said residue vest wholly either (a) in the said Thomas Bruce or ( b) in the said Mrs Isabella Bruce or Wilson? Or (5) Did said residue vest in the said Thomas Bruce and Isabella Bruce or Wilson in equal shares?”

Argued for the first parties—(1) The date of the death of the surviving liferentrix was the date of vesting, and as neither James Bruce, Thomas Bruce, nor Isabella Bruce was alive at that date, the residue fell to the testator's heirs in mobilibus in the proportions of two-thirds to the first parties as representing the testator's sisters, and one-third to the second and fifth parties equally between them as representing the testator's brother. Survivance of the period of vesting must be read as a condition of the gift to those called nominatim, and this excluded the application of the conditio si sine liberis— M'Call v. Dennistoun, December 22, 1871, 10 Macph. 281. (2) If the conditio si sine liberis was held to apply, the third and fourth parties were only entitled in virtue thereof to two-thirds of the residue, the remaining third falling to the testator's heirs in mobilibus in the proportions above specified, as it had been decided that accrescing shares do not fall under the conditio si sine liberis— Young v. Robertson, February 14, 1862, 4 Macq. 337; Aitken's Trustees v. Wright, December 22, 1871, 10 Macph. 275; Neville v. Shepherd, December 21, 1895, 23 R., opinion of Lord M'Laren 357.

Argued for second parties—(1) The date
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of the testator's death was the date of vesting, and the whole of the residue vested in Thomas Bruce. (2) Alternatively the residue vested equally in Thomas Bruce and Mrs Wilson a morte testatoris. (3) If it was held that the date of vesting was the date of the death of the last surviving liferentrix, they concurred in the second argument of the first parties.

Argued for third and fourth parties—The residue vested on the death of the last surviving liferentrix, and they were entitled to the whole of the residue equally between them per stirpes in virtue of the conditio si sine liberis— Aitken, supra; M'Culloch's Trustees, May 14, 1892, 19 R. 777; Allan v. Thomson's Trustees, May 30, 1893, 20 R. 733.

Argued for fifth parties—(1) The residue vested equally in Thomas Bruce and Mrs Wilson a morte testatoris. (2) If it was held that vesting took place on the death of the last surviving liferentrix, they concurred in the second argument of the first parties.

At advising—

Judgment:

Lord Trayner—Mr Archibald Bruce, the testator, disponed his whole estate, heritable and moveable (except the estate of Bankton) to his two sisters, and the survivor of them in liferent allenarly, and to “James Bruce in fee, whom failing the said Thomas Bruce in fee, whom failing the said Isabella Bruce in fee, but divisible in the events and in manner after mentioned, whom all failing … to my own nearest heirs in fee.” James predeceased the testator; Thomas and Isabella survived him, but both predeceased the survivor of the liferenters. In these circumstances, the principal question submitted for our decision is, in whom did the fee of the estate vest under the destination I have quoted. I have no doubt that the fee vested in Thomas, the first here called in the destination, who survived the testator, and (as the liferent did not suspend vesting) that vesting in Thomas took place a morte. That vesting in Thomas evacuated the destination to Isabella called to the succession after him.

But the conveyance to Thomas was burdened or limited by a declaration to the effect that if Thomas and Isabella survived the extinction of the liferent (I leave out James who predeceased), then the fee should be divided between them, if only one survived, the survivor should take the whole. In the event which happened, this declaration became inoperative. Neither of the two fiars, successively called, survived the longest liver of the two liferenters. The declaration as to the division of the fee never having thus come into effect by reason of the failure of the condition on which it proceeded, the fee remained, as destined, in the person of Thomas, free from the limitation or burden which, had the event provided for happened, would have been imposed. I think, therefore, that the first branch of the fourth question should be answered in the affirmative.

In the view I have expressed, it is unnecessary to answer any of the other questions.

Lord Young and the Lord Justice-Clerk concurred.

The Lord Justice-Clerk read the following opinion of Lord Moncreiff, who was absent:—I am of opinion that question 4 ( a) should be answered in the affirmative. This question depends upon the construction of two clauses in the settlement of Archibald Bruce of Bankton. It was in-tended that they should be read together, because in the first clause the latter clause is distinctly referred to in the words “but divisible in the events and in manner after-mentioned.” We must therefore, so far as possible, reconcile the two clauses, and I think that this can best be done by sustaining the argument for the second parties and holding that the operation of the latter clause was confined to an event which has not occurred, namely, of one or more of the parties named surviving both the liferenters, and that therefore right to the whole of the residue vested in Thomas Bruce, who survived the testator, succeeded to Bankton, but predeceased the longest liver of the liferenters. I think the leading feature of the testator's scheme of disposal of the residue was that it should go along with the estate of Bankton, the destination being precisely the same as that which regulated the succession to Bankton. Otherwise the destination in the first clause would be absolutely without meaning. But notwithstanding this, the testator, somewhat inconsistently, wished and directed that if any of the parties called to the succession survived the date of payment—that is, in the event which happened, the death of the longest liver of the liferenters—the residue should suffer division, or in the event of only one of the conditional institutes surviving he or she should take the whole.

But none of these events occurred, and all the favoured parties predeceased the liferenters. We are therefore thrown back upon the first clause, which will now be read without the words “but divisible in the events and in manner after mentioned.” I may add that, in my opinion, the parties being called nominatim, and their participation in the residue being dependent on survivorship of a certain term, there is no room for the application of the conditio si sine liberis. I think that succession to the residue is as strictly limited to the individuals named as is the succession to the estate of Bankton. The modification of the first clause by the second was, I think, introduced solely out of personal and individual favour to the parties named— M'Call v. Dennistoun, 10 Macph. 281; Blair's Trustees, 3 R. 304; Gillespie v. Mercer, 3 R. 561.

I would also observe that in the later clause there is no ulterior destination to meet the event of none of the parties surviving the liferenters. This, I think, goes to show that the former clause is in that event to rule.

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The Court answered the questions by declaring that the residue of the estate of the deceased Archibald Bruce vested wholly in Thomas Bruce, subject to the liferent of the now deceased Mrs Isabella Bruce or Torrance and Miss Margaret Jane Bruce.

Counsel:

Counsel for the First Parties— Cullen. Agent— F. J. Martin, W.S.

Counsel for Second and Sixth Parties— Macfarlane— Sym. Agents— Wallace & Guthrie, W.S.

Counsel for the Third Parties— Kincaid Mackenzie. Agent— F. J. Martin, W.S.

Counsel for the Fourth Parties— Cook. Counsel for the Fifth Parties— Vary Campbell. Agents— Fraser, Stodart, & Ballingall, W.S.
1898