Scottish Court of Session Decisions

Mr James Bowie died in January 1824 leaving a trust-disposition and settlement dated April 18, 1821. By this trust-disposition he conveyed his whole estates to a trustee, whom he directed “in the seventh place, for payment to my son William Bowie and his heirs, of all the residue and remainder of my moveable property including any legacies above bequeathed that may fall by predecease or otherways, but excepting my household furniture, plate, and other effects in my dwelling-house.” He further directed—“And in the last place, it is my will, and I hereby direct, that my trustees shall hold my whole heritable property, with the household furniture, plate, and other effects in my dwelling-house, in trust for my said son William Bowie in liferent, and his lawful issue in fee, whom failing for James King, eldest lawful son of the said Mary Bowie and Alexander King, for the said James King's liferent and his lawful issue in fee, whom failing for my said daughter Elizabeth in liferent and her lawful issue in fee, whom failing for my said daughter Ann in liferent and her lawful issue in fee, whom all failing for my said nieces Eliza and Ellen M'Kenzie, equally between them and their heirs and assignees whomsoever; and I ordain my said trustees to convey my property accordingly.”

The said William Bowie, Mary Bowie, Elizabeth Bowie, and Ann Bowie were all illegitimate children of the truster. The estate was managed by the trustee till his death in 1840, and thereafter it was managed and the rents received by the liferenter William Bowie.

William Bowie died without issue in 1845, leaving a general mortis causa settlement in favour of James Hunter Ross, who thereafter claimed to have right to the heritable estate left by Mr James Bowie, and raised an action of declarator to that effect. The action was defended by James King the next liferenter, and on 22nd June 1847 the Court rejected the claim of James Ross, holding that William Bowie had merely a liferent interest (see report of case Ross v. King and Others, 9 D. 1327). James King died on 28th February 1877 without leaving issue, having possessed and enjoyed the whole heritable estate until his death. He disponed his whole estate to his brother Alexander King, who in respect thereof entered into possession of the estate.

Mrs Elizabeth Bowie or Black, being the liferentrix next in succession to James King, raised an action against Alexander King for declarator that the heritable estate in question belonged to her for her liferent use allenarly and to her issue in fee, and obtained decree accordingly. Mrs Black thereafter craved the Court to appoint her husband and Mr Alexander Rankin as trustees under Mr James Bowie's settlement, and this appointment was made.

Mrs Black continued to enjoy the liferent of the estate till her death on 27th April 1896.

At the date when the liferent opened to Mrs Black, viz., on the death of James King on 28th February 1877, she had two children alive, David Auld Black, who survived her, and Mary Black, who died on 5th December 1877, leaving two children.

A special case was presented to the Court by (1) the trustees under Mr James Bowie's settlement; (2) David Auld Black; and (3) the two children of Mary Black.

The contentions of the parties as stated in the case were—“The second party maintains (1) that the term ‘lawful issue’ occurring in the said settlement means immediate lawful children to the exclusion of grandchildren; (2) that the fee of the heritage did not vest until his mother's death; and consequently (3) vested in him at that date as his mother's only surviving lawful child; or otherwise, and in the event of its being held that the fee of the testator's heritage vested on the opening of the succession to his mother, he maintains that the one-half thereof vested in him at that date as one of his mother's two immediate children then surviving. The third parties maintain on the other hand (1) that the fee of said heritage vested at the date when the liferent opened to their grandmother Mrs Elizabeth Bowie or Cameron or Black, in her only lawful children then surviving (there being none after born), that is to say, in the second party, and in their mother Mary Black or M'Bride, afterwards M'Kechnie, in equal shares; and (2) that they are now entitled equally to their mother's share so vested, in respect that the term ‘lawful issue’ occurring in the said settlement is not restricted to immediate lawful children but includes grandchildren; or (3) that even in the event of its being held that the fee

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of said heritage did not vest until the death of Mrs Elizabeth Bowie or Cameron or Black, they are entitled to have made over to them one-half of said heritage.”

The questions submitted for the judgment of the Court were—“1. Did the fee of the estate vest in the ‘issue’ of the liferentrix Mrs Black (1) at the date of the birth of her eldest child; or (2) at the date of the opening of her liferent; or (3) at the date of her death? 2. Does the word ‘issue’ in the destination in the truster's settlement in favour of Elizabeth Bowie in liferent and her lawful issue in fee include grandchildren? 3. Does the whole estate in the hands of the first parties fall to be conveyed and paid to the second party? 4. Does the said estate fall to be conveyed and paid to the extent of one-half to the second party, and to the extent of the other half to the third parties?”

Argued for second party—(1) “Issue” had no fixed meaning, but must be interpreted subject to the provisions of the deed in each case, and there was no general presumption— Turner's Trustees v. Turner, March 4, 1897, 24 R. 619, at 621; Young's Trustees v. M'Nab, July 13, 1883, 10 R. 1165; M'Murdo's Trustees v. M'Murdo, January 28, 1897, 24 R. 458; Innes v. Coghill, October 22, 1897, 25 R. 23, There was nothing in the present deed to show that it was intended to include in “issue” anyone except children. The testator was not in loco parentis, his children being illegitimate, and accordingly the Court would not extend the meaning of “issue,” Its proper meaning here was “heirs in heritage.—Ersk. iii. 8, 47; Ranken and Other's, June 17, 1870, 8 Macph. 878; Connell v. Grierson, February 14, 1867, 5 Macph. 379. (2) There could be no vesting until the period of division—that was, until the death of the liferentrix. The result of the direction to hold was that the trustees could only convey the estate when the whole class of fiars had appeared, and that could only be at the death of the liferentrix. If she and one child had come and demanded a conveyance the trustees would not have been entitled to give it.

Argued for third parties—(1) “Issue” must be held to include descendants of every degree— Turner's Trustees v. Turner, supra; Macdonald v. Hall, July 24, 1893, 20 R. (H.L.) 88; Hickling's Trustees v. Fair, August 1, 1898, 35 S.L.R. 975. (2) As the liferentrix had a child at the date of the succession opening to her, the fee vested in that child. It was clear from the case of Ross v. King, June 22, 1847, 9 D. 1327, that if any liferenter had children the fee would vest in those children— Douglas v. Thomson, January 7, 1870, 8 Macph. 371; Cunningham v. Cunningham, November 30, 1889, 17 R. 218. Accordingly, the trust ought now to come to an end.