Scottish Court of Session Decisions

Miss Jessie Jolly, who resided at the Cottage, Dunnet, in the county of Caithness, died on 5th June 1894, leaving a holograph last will and testament dated 2nd April 1894. After providing for payment of debts and certain legacies the will proceeded as follows:—“I bequeath to my nieces Isabella, Frances, Janet, and Christina, the the sum of £600 each = £2400. to my

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nephew Peter Purves the sum of £300. To my nephews James, Thomas, and William, the sum of £250 each = £1050. My silver plate, personal belongings, and all the residue of my estate to my niece Christina Purves. But there shall be no division of my estate till my niece Christina Purves attains the age of twenty-one, the interest being employed as much as possible to pay off all debts and charges left by me; but when these are discharged, each year the interest accruing shall be paid to each of the different legatees according to the amount of capital belonging to each; and should any one of my said nieces die unmarried before my niece Christina Purves attains the age of twenty-one, then said share shall be divided equally between the surviving sisters; and in like manner should anyone of my nephews die, then his share shall be divided among his surviving brothers. Now, it is to be understood that such provisions are purely alimentary, and that it is illegal to mortgage or pledge in any way the provisions made for my several nieces and nephews in this will; but should any of them, in defiance of this proviso, insist on becoming security for any one, or in any way mortgaging the provision left for them by me, then the nephew or niece who acts in that way shall forfeit all right to his or her share, and the said share shall be paid by my trustees to the managers of the Royal Infirmary of Edinburgh for the time being, for the purposes of that institution.…“Then followed a request to certain parties named to act as her trustees, and then this clause—“I should also like my executors to continue my present investments as far as they seem safe, and absolving from any responsibility in the matter. When my niece Christina Purves reaches the age of twenty-one, each one share will become his or her absolute property, and can be disposed of by will or otherwise as the legatees desire.”

Christina Purves, the residuary legatee under Miss Jolly's will, died in minority, unmarried, and intestate, on 29th April 1896. If she had lived she would have attained the age of twenty-one on 9th July 1900.

In consequence of the death of Christina Purves in minority questions arose as to the distribution of the estate of the testatrix, and the present action of multiplepoinding and exoneration was raised by Miss Jolly's sole accepting and acting executrix.

Claims were lodged for (1) Mrs Isabella Jolly or Purves, the sole surviving sister of the testatrix, with consent of her husband, and Alexander M'Donald as her marriage—contract trustee, who claimed the legacy of £600 bequeathed to Christina Purves, the silver plate and personal belongings bequeathed to her, and the residue of Miss Jessie Jolly's estate, on the ground that these bequests had fallen into intestacy, and that Mrs Isabella Jolly or Purves was Miss Jessie Jolly's sole next-of-kin and representative in mobilibus ab intestata; (2) for Isabella, Frances, and Janet Purves, who claimed £600 each, with interest from the date of Christina's death, an equalshare each of the £600 beqeathed to Chris tina Purves, with interest from the date of Christina's death, and an equal share of the residue of the estate of Miss Jessie Jolly, including her silver plate and personal belongings, or alternatively a share of the provisions in favour of Christina as three of her next-of-kin; (3) for Christina Purves' executor-dative, who claimed the provisions in her favour under Miss Jessie Jolly's will on the ground that they vested in her a morte testatoris, or alternatively the residue in respect that it so vested; (4) for Peter, James, Thomas, and William Purves, who claimed £1059, to be paid to the survivors of them on 9th July 1900, with interest, or otherwise £1050 unconditionally with the proportion of interest applicable thereto; and (5) for Isabella Swanson and Mrs Elizabeth Robertson or Gunn, with consent of her husband, and her husband for his own right and interest, who claimed £100 and £20 respectively, being the amounts of legacies bequeathed to them by the testatrix.

The claim No. 1 was not ultimately persisted in, and the claim No. 5 was not disputed.

On 28th March 1898 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Finds (1) that the bequests in the last will and testament of the late Miss Jessie Jolly in favour of her nieces and nephews did not vest a morte testatoris; (2) that no right to a share of her estate vested in the now deceased Christina Purves; (3) that the whole interest in said estate destined to her passed to her sisters Isabella, Frances, and Janet under the destination in their favour; (4) that the provisions in favour of the nieces and nephews of the testatrix vested in them on the death of the said Christina Purves; and (5) are now payable to them: Therefore (I.) sustains the claims of the said Isabella, Frances, and Janet Purves, (1) to £600 each, (2) to £600 equally between them, and (3) to the residue of the estate of the testatrix, including her silver plate and personal belongings: (II.) Sustains the latter or alternative claim for Peter, James, Thomas, and William Purves: (III.) Sustains the claim for Isabella Swanson and Mrs Elizabeth Robertson or Gunn and Alexander Gunn for present payment of £100 and £20: Repels all the other claims, and ranks and prefers the claimants accordingly: Finds that the expenses of all the claimants are payable out of the estate,” &c.

Opinion.—“This will bequeaths £600 to each of four nieces, £300 to a nephew, and £250 to each of three other nephews, and the residue to Christina, one of the four nieces, but payment is postponed until Christina attains the age of twenty-one. Thus far there is nothing to prevent vesting a morte testatoris, but then there follows the clause on which the present question depends—‘Should any one of my said nieces die unmarried before my niece Christina Purves attains the age of twenty-one, then said share shall be divided equally between

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the surviving sisters.’ This is a proper survivorship clause, and I think there is no doubt that it prevented vesting a morte testatoris of the ‘share,’ whatever that may mean. It was argued that the ‘share’ referred only to interest, but in my opinion that is not so. I think it refers to capital sums, not interest, and I do not think that is doubtful. I think that as none of the nieces have been married that clause operated suspension of vesting until Christina's death. I consider that it applied to Christina as well as to the other nieces. She cannot be excluded from its operation without doing violence to its express language. Hence the share destined to Christina had not vested in her when she died, and the destination-over in favour of her sisters Isabella, Prances, and Janet took effect. I am further of opinion that Christina's share referred to in this clause, and falling under the ulterior destination, included all that was bequeathed to her. The term ‘share’ is not used in the deed before. It was a share of the testatrix's estate, and I perceive no legitimate reason for restricting the meaning of the word. There are no doubt plausible grounds for the suggestion that it was not intended to include in the ulterior destination the testatrix's residue, and so in the event of Christina's death intestate, preferring her sisters to her brothers, or the testatrix's belongings and silver plate, especially as no provision is made for the division of these, but such suggestions are conjectural. There are no words in the will to justify them, and it would be making another will, and not construing this will, to give effect to them.

The next question is, whether the suspension of vesting has ceased by the death of Christina, and I am of opinion that it has. The testatrix's words refer not to a date but an event. They do not postpone division until the date when Christina shall attain twenty-one, but until she attains twenty-one that event cannot happen. The words express a suspensive condition which has become impossible, and I am of opinion that they must, in accordance with an elementary rule in the construction of wills, be held pro non scripto, and therefore as deleted from the deed at the date of her death.

The same conclusion is reached on what I consider a legitimate construction of the clause, for I hold it to mean that the division of the estate should not take place until Christina attained twenty-one ‘if she survived.’ That qualification must have been in the mind of the testatrix, for she cannot be supposed to have overlooked the possibility of Christina's death. The result must be that the event to which the survivorship clause and destination-over applies has happened, and that the provisions in favour of the surviving nieces have therefore vested. The provisions in favour of the nephews have plainly been affected in the same way, and they also have vested.

No decisions very closely applicable were quoted. The case of Mackie v. Gladstone, March 14, 1876, 13 S.L.R. 368, is the most in point. There it was held that the residue of an estate directed to be paid to two sons when the younger attained twenty-five, with a survivorship clause, was payable to the other on the death of the younger before attaining twenty-five. That case, although somewhat different in its circumstances, seems to support my view of the present case— Cattanaeh v. Flinn's Executors, July 2, 1858, 20 D. 1026; and Maitland's Trustees v. M'Diarmid, March 15, 1861, 5 Macph. 732, were also quoted as touching on this question. There appears, however, to be nothing in them opposed to that view. In Finlay's Trusteee v. Finlay, July 6, 1886, 13 R. 1056, payment of a provision was authorised before the date fixed in the deed, the reason for postponing payment having come to an end. That decision seems to have proceeded on a similar principle.

From the grounds of this judgment it follows that the bequests in the testament may now be paid. There is no one who can have any interest to object to such payment. I have no need to consider the question which would have arisen between Christina's next-of-kin and her executor, had I held that any part of the estate had vested in her.”

Christina Purves' executor—dative reclaimed, and argued—The provisions in favour of Christina Purves vested a morte testatoris. The so-called survivorship clause was not, properly speaking, a survivorship clause at all. The gift here was an absolute gift, and vesting was not postponed. In any view, the survivorship clause did not apply to the residue or the plate and personal belongings. The word “share” only applied to the legacy of £600. It could not be maintained that the plate and personal belongings were not intended to vest at once.

Argued for the claimants and respondents Isabella Purves and others— The Lord Ordinary's judgment was right. Vesting was postponed in respect of the survivorship clause. The word “share” applied to the whole interest of each beneficiary.

Counsel for the claimants and respondents Peter Jolly Purves and others were in attendance but did not address the Court.