Scottish Court of Session Decisions

Charles Stewart Still, of Burgar and Smoogrow, died on 11th April 1879, leaving a trust-disposition and settlement dated 30th May 1878, in which he left his whole estates, heritable and moveable, to trustees for, inter alia, the following purposes:—Secondly, that his wife Mrs Anne Thomson Low, otherwise Still, should have the liferent of his whole estate; “Thirdly, that on the decease or my said spouse should she survive me, or on my own decease should she predecease me, the said whole remainder of my estates, heritable and moveable, real and personal, shall be divided into two equal parts,” the one of which should be conveyed to certain persons, “and the other of which two equal parts shall be conveyed and made over … to and in favour of my nephews and nieces, Mrs Catherine Stewart Morison or Sinclair, residing at Durban, Natal, the said Alexander Simpson, advocate and Procurator-Fiscal of Aberdeenshire, Peter or Patrick Simpson, master mariner, the children of the now deceased William Simpson, New Zealand, the children of the also now deceased Charles Still Simpson, engineer in the East Indies, the said Major Simon Simpson, Royal Artillery, Captain James Simpson, Royal Engineers, George Simpson, sheep farmer in New Zealand, Catherine Stewart Simpson or Matheson, wife of Reverend John Matheson of the Presbyterian Church, Hampstead, James Oughterson, lieutenant, Eighteenth Royal Irish Regiment, son of deceased Charlotte Still Simpson or Oughterson, Alan Matheson, son of deceased Rachael Ellinor Simpson or Matheson, and Helen Anne Simpson or Stewart, wife of Dr Robert Stewart, Glasslough, Ireland, and to the lawful issue of such of my said nephews and nieces as may have died leaving lawful issue their deceased parent's share equally among them, and failing any of my said nephews and nieces without leaving lawful issue, to the survivors of them equally, whom also failing, to their nearest lawful heirs whomsoever.”. James Oughterson and Alan Matheson were both only children of their respective parents.

With reference to the second equal part or share of the residue, the truster was survived by his wife Mrs Anne Thomson Low or Still, the liferentrix, and by all the beneficiaries named by him.

Between the date of the testator's death and the date of the death of Mrs Still, the liferentrix, three of the beneficiaries died, viz., Peter or Patrick Still Simpson, who

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had no issue, James Simpson, who left two children, and Mrs Helen Anne Simpson or Stewart, who was survived by a large family.

On Mrs Still's death a question arose with reference to the persons entitled to a share of the second part of the residue destined to Peter or Patrick Still Simpson.

For the settlement of this question an action of multiplepoinding and exoneration was brought by Harvey Hall, assignee of Alexander Simpson, in the name of the trustees of Charles Stewart Still, the testator, against the survivors of the beneficiaries named in Mr Still's trust-disposition and the legal representatives or heirs of those who had since died.

Claims were lodged on behalf of (1) Mrs Sinclair, (2) the assignee of Alexander Simpson, (3) George Simpson, (4) Mrs Matheson, and (5) Colonel Simon Simpson. These claimants contended that the fund in medio should be divided into five shares, and that one share should be given to Mrs Sinclair, Alexander Simpson, Simon Simpson, George Simpson, and Mrs Matheson, the presently surviving nephews and nieces of the truster named in the settlement, to the exclusion of the children of those nephews and nieces who predeceased either the liferentrix or the testator.

Claims were also lodged on behalf of Helen Simpson, the only surviving child of William Simpson, Major James Oughterson, and the Reverend Alan Matheson. These claimants contended that they were entitled to a share in the distribution of the fund in medio along with the surviving nephews and nieces of the testator, and that the fund in medio should be divided into nine shares, and that one share should be given to each of Mrs Sinclair, Alexander Simpson, the surviving child of William Simpson, the children of Charles S. Simpson, Simon Simpson, George Simpson, Mrs Matheson, James Oughterson, and Alan Matheson.

A claim was also lodged for the children of the late Captain James Simpson, in which they maintained that they were entitled to such part of the fund in medio as would have fallen to their parent had he survived and claimed in the present competition.

On 24th August 1898 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Finds that the fund in medio consists of the share of residue left by the truster to his nephew Patrick Still Simpson, in the event of the said Patrick Still Simpson surviving the truster's widow: Finds that the said Patrick Still Simpson predeceased the said widow without issue, and that, in terms of a clause of devolution contained in the settlement, his share falls to be divided as a devolved share among the survivors of the persons described in the settlement as the truster's nephews and nieces: Finds that, upon the just construction of the settlement and of the said clause of devolution, the expression ‘nephews and nieces’ includes not only the primary legatees named in the settlement, who were nephews and nieces proper of the truster, but also the other primary legatees named or described in the settlement, who were his grandnephews or grandnieces: Finds in particular that the said expression covers the claimants Alan Matheson and James Charles Oughterson, who are grandnephews of the truster, and are named in the settlement, and take each a primary share of residue: Finds that it covers also the children of the truster's nephew William Simpson, deceased, and also the children of the truster's nephew Charles Still Simpson, deceased, both of said nephews having predeceased the truster, and their children being instituted by the settlement as primary legatees: Finds, on the other hand, that although the settlement contains a clause providing for the issue of primary legatees taking, in the event of their parent's predecease, their said parent's share, such issue do not, on the just construction of the settlement and of the said clause of devolution, participate in the division of any devolved share, and, in particular, of the devolved share of Patrick Still Simpson now in question: Therefore to that extent and effect sustains the claims of the various claimants other than that for the children of Captain James Simpson; repels the said last-mentioned claim, and decerns; and in respect that it does not appear that the parties are agreed as to the exact number of shares into which the fund in medio falls to be divided on the principles above expressed, appoints the cause to be enrolled for further procedure.”

Thereafter a claim was lodged by William Gordon Simpson, Mrs Margaret Catherine Simpson or Maclure, and Miss Helen Mary Simpson, children of the deceased Charles Still Simpson, in which they maintained that the fund in medio fell to be divided equally among those of the primary legatees named and designed in the third purpose who had survived the testator. They further maintained that they were entitled to share per capita and not per stirpes along with the said primary legatees. They therefore claimed to be ranked and preferred each to a one-eleventh share of the fund in medio, or alternatively, each to one-third share of one-ninth of said fund.

They pleaded—“(1) On a sound construction of the said trust-deed these claimants ought to be ranked and preferred per capita, together with the other primary legatees, to the fund in medio.”

On 4th November 1898 the Lord Ordinary pronounced the following interlocutor:—“Opens up the record: Allows claim for W. G. Simpson and others to be received, and the same to be added to the record, and this being done, of new closes the record, reserving all questions of expenses: And having further heard counsel with special reference to said claim, sustains the first plea-in-law for said claimants, and continues the cause: Grants leave to reclaim.”

The claimants Mrs Sinclair, the assignee of Alexander Simpson, George Simpson, Mrs Matheson, and Simon Simpson reclaimed, and argued—(1) The division in the primary clause was per stirpes and not

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per capita. The deed was practically a family settlement, and if in such a settlement a fund was left to A, B, and the children of C, the division was per stirpes. No grandnephew or grandniece was called by name except the Rev. Alan Matheson and Major Oughterson, each of whom was the only child of his parents. This showed the intention of the testator that the division should be per stirpes— Cunningham's Trustees v. Cunningham, January 13, 1891, 18 R. 380; Inglis v. M'Neils, June 23, 1892, 19 R. 924; Galloway's Trustees v. Galloway, October 27, 1897, 25 R. 28. The cases quoted on the other side were quite distinct from the present. In M'Courtie, subter the bequest was not a family one. In Macdougall, subter, the destination of the fee was quite specific “to the issue of my grandchildren equally.” (2) By the clause of devolution the share of nephews and niecesdying without leaving lawful issue was given “to the survivors of them equally.” This meant survivors of nephews and nieces, and did not include grandnephews or grandnieces. The claimants were therefore entitled each to one-fifth of the share that would have fallen to Peter or Patrick Simpson if he had survived.

Argued for claimants Helen Simpson, James Oughterson, and Alan Matheson—(1) As regards the primary legacy, they maintained it must be divided per stirpes, and adopted the argument on that point of the prior claimants. (2) As to the devolved share, they maintained that it must be divided per stirpes among those mentioned in the primary clause who had survived the death of the liferentrix. The testator had made his own vocabulary, and grandnephews and grandnieces must be held to be included in the term “nephews and nieces”— Weeds v. Bristow, 1866, L.R., 2 Eq. 333.

Argued for claimants W. G. Simpson and others, the children of Charles Still Simpson—(1) The division in the primary clause was per capita among all the parties called. The presumption in law was that when a testator makes a bequest to certain persons nominatim and certain persons as a class, the division was to be per capita— M'Courtie v. Blackie's Children, January 15, 1812, Hume 270; Macdougall v. Macdougall, February 6, 1866, 4 Macph. 372; opinion of Lord Justice-Clerk Moncreiff in Laing's Trustees v. Simson, November 18, 1879, 7 R. 245. The cases quoted on the other side failed to rule the present because of this distinction, that in the present case two of the grandnephews were called nominatim and the rest were called as a class. (2) As to the devolved share, they adopted the argument of the other grandnephews and grandnieces, with this exception, that they maintained the division of the devolved share should be per capita.

At advising—