Scottish Court of Session Decisions

By antenuptial contract of marriage dated 24th October 1863, entered into between John Craw (hereinafter called John Craw senior) and Mrs Ann Scott Bell or Craw, then Miss Ann Scott Bell, Mrs Ann Scott Bell or Craw, in consideration of similar provisions by John Craw senior in her favour, conveyed to the marriage-contract trustees therein mentioned the whole estate, heritable and moveable, which belonged to her at the date of the said intended marriage, or which should belong to her during the subsistence of the said then intended marriage, and particularly certain heritable subjects called Lanton Tower, in the parish of Jedburgh and county of Roxburgh, declaring that the said estate and effects, and the proceeds and annual interest and produce thereof, should be held and applied by the said trustees for behoof of the spouses during the subsistence of the marriage in alimentary liferent, and for behoof of the survivor of them also in liferent, and as an alimentary provision for behoof of himself and herself, and of the child or children of the wife. By this contract of marriage it was further provided that failing children of the marriage and their lawful issue, the estate derived from Mrs Ann Scott Bell or Craw should be paid and assigned in such way and manner as she might have directed or should direct by any deed executed or to be executed by her. There was no child of this marriage, and Mrs Ann Scott Bell or Craw died on 17th June 1881 survived by John Craw senior, and leaving a trust-disposition and settlement, whereby she, on the narrative of the antenuptial contract of marriage, conveyed to trustees the whole estate, heritable and moveable, which should belong to her at the time of her death.

After providing for payment of debts, funeral expenses, and the expenses of the trust, this trust-disposition and settlement proceeded as follows:—“ Second, after the death of the said John Craw [i.e., John Craw senior), if he shall survive me, my trustees shall, with all convenient speed thereafter, proceed and realise and convert into cash my whole means and estate; Third, at the first term of Whitsunday or Martinmas that shall happen six months after my death, I appoint and direct my trustees to make payment of the following legacies, viz.—To the said William Oliver and Robert Scott as a small acknowledgment of my esteem and the many kindly services they have performed for me, each the sum of £100, whom failing both or either of the said William Oliver and Robert Scott, then to their heirs and successors equally between them, share and share alike: To my cousin William Bell, presently Chief-Constable at Leeds, of the sum of £200; to John Craw doctor of medicine [i.e., John Craw junior], son of the said John Craw [ i.e., John Craw senior], and his heirs and successors, the sum of £1000: In the event of the said John Craw, doctor of medicine, predeceasing me without leaving lawful issue of his body, I leave and bequeath to the said John Craw, my husband, his heirs and assignees, the sum of £500 in consideration of the expenditure incurred by him out of his own funds on my property: And with regard to the residue and remainder of my means and estate, I appoint my trustees to pay, assign, dispone, and convey the same in favour of the child or children alive at my death, procreated of the marriage between my uncle Dr William Bell, Inspector-General of Hospitals, now deceased, and Mrs Zébée Stewart Gordon, his wife, equally between and among them, share and share alike.” …

In the testing clause of this trust-disposition and settlement there was a declaration that the legacies and residue of the said Ann Scott Bell or Craw's estate thereby bequeathed should not be payable until the first term of Whitsunday or Martinmas happening six months after the death of John Craw senior, the testatrix's husband, should be survive her, the liferent of the estate should be survive her being thereby confirmed.

John Craw senior was thrice married, the testatrix being his second wife. John Craw junior, designed in Mrs Ann Scott Bell or Craw's trust-disposition and settlement as “John Craw, doctor of medicine,” was his son by his first marriage, and was his only child. John Craw junior died unmarried and intestate on 1st July 1874. He predeceased his father and the testatrix, and his father John Craw senior was at the time of his death his nearest relative and heir.

John Craw senior liferented the testatrix's estate until his death, which occurred on 19th January 1897. John Craw senior left a general disposition and settlement dated 10th January 1895, whereby he gave, granted, assigned, and disponed to his third wife, who survived him, the whole estate, heritable and moveable, which should belong to him at the time of his decease, including therein all legacies or sums of money, if any, to which he or his heirs and representatives might have right as heir and successor of his son, the deceased John Craw junior, and he appointed his third wife to be his sole executrix and universal legatory.

The estate of the testatrix Mrs Ann Scott Bell or Craw having been realised, questions arose as to the parties entitled thereto; and the present special case was accordingly presented for the opinion and judgment of the Court.

The parties to the special case were (1) the testamentary trustees of Mrs Ann Scott Bell or Craw, (2) the executrix-nominate of John Craw senior, and (3) the residuary legatees under Mrs Ann Scott Bell or Craw's trust-disposition and settlement.

The second party contended that John Craw senior being the nearest relative of

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his son John Craw junior at the time of the latter's death, and also at the time of the testatrix's death, was his son's heir and successor within the meaning of Mrs Ann Scott Bell or Craw's trust-disposition and settlement; that the legacy of £1000 above mentioned vested in John Craw senior, and that she, as his sole executrix, was now entitled thereto. She also contended that the event specified with regard to the legacy of £500 above mentioned, viz., the death of John Craw junior without lawful issue of his body, having happened, that legacy of £500 either vested in John Craw senior at the testatrix's death, or in herself, the second party, as heir and assignee of John Craw senior at John Craw senior's own death. She accordingly claimed payment of both legacies.

The third parties, the residuary legatees of Mrs Ann Scott Bell or Craw, contended that only one legacy was payable. They maintained, with regard to the legacy of £1000, that the words “the heirs and successors” of John Craw junior had, in the meaning of the trust-disposition and settlement, the same sense as the words “the lawful issue of his body” in the clause immediately following, or at all events that John Craw junior having predeceased the testatrix, and having left no issue, the legacy lapsed and fell into residue.

Alternatively they maintained that the testatrix did not intend that the legacy of £500 should be payable besides that of £1000, and that if the legacy of £1000 was payable, that of £500 had lapsed and fallen into residue.

The questions of law for the opinion and judgment of the Court were as follows:—(1) Are both the said legacies, one of £1000 and one of £500, payable out of Mrs Craw's estate? (2) Is the said legacy of £1000 payable to the heirs and successors of John Craw junior? and if so, Is the second party, as executrix and universal legatory of John Craw senior, entitled thereto? (3) Is the second party entitled to payment of the legacy of £500? (4) John Craw, M.D., having predeceased Mrs Craw without issue, does the £1000 legacy to him fall into residue?

The fourth question was added by way of amendment.

Argued for the third parties—The intention of the testatrix here plainly was to give her stepson £1000, and in the event of his predeceasing her without leaving issue, to give his father £500, but it was not her intention that in any event the father should get £1500. The word “heirs” was flexible in meaning and subject to interpretation, and the apparent intention of the testatrix here showed that in this deed it was to be read as equivalent to “heirs of his body,” or “lawful issue of his body,” the words used in the immediately succeeding clause—See Hunter v. Nisbett, November 14, 1839, 2 D. 10, and Matthew v. Scott, February 21, 1844, 6 D. 718, per Lord Mackenzie at p. 721.

Argued for the second party—The word “heirs” must receive its ordinary meaning as heirs whomsoever. It could only be held to mean “heirs of his body” when that interpretation was shown by the context to be the only reasonable one— Thorburn v. Thorburn, March 18, 1858, 20 D. 829; Cleland v. Allan, January 13, 1891, 18 R. 377. The heir of John Craw junior took as conditional institute. Here there was nothing to restrict the meaning of the word “heirs.” If John Craw junior's heir had been his brother it could not have been contended that both legacies were not to receive effect. If John Craw junior had died without issue, but leaving a will, his father might not have got anything as his heir.