Scottish Court of Session Decisions

By his trust-disposition and settlement Alexander Stuart, builder, Peterhead, conveyed to trustees his whole heritable and moveable estate for certain purposes. With regard to the residue of his estate, ho directed his trustees “to hold, apply, and divide the same between and among the persons hereinafter named or referred to, being my own relations, whom I do hereby appoint to be my residuary legatees—[Here followed an enumeration of certain of the testator's nephews and their children with their respective shares].… ( Fifth) To my niece Mrs Isabella Stuart or Wyness … one just and equal tenth part thereof … Declaring always, that in the event of any of my said last-named nephews and niece, namely, the said John Stuart, the said Alexander Stuart, and the said Isabella Stuart or Wyness, or any of them, dying without leaving lawful issue at the time of the division of the capital or stock of my said means and estates under these presents, then the share or shares to which they or any of them would have been entitled (had he, she, or they survived the said time) shall fall to and devolve on the said children of the said Peter Stuart equally between and among them.” The testator also declared that in the event of any of his nephews or nieces dying without leaving lawful issue alive at the said period of division, then his, her, or their share or shares should become part of his general trust-estate falling for division among the other beneficiaries in terms of his settlement.

By codicil executed after the death of Mrs Wyness, the testator made sundry alterations on his settlement, and on the narrative of her having predeceased him, proceeded—“I recal the bequest of one just and equal tenth part of the residue of my estate … conveyed to” her. There followed the declaration “that these presents

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shall noways infer a revocation of my said trust-disposition and deed of settlement … but that the same shall stand in full force with these additions and alterations thereto.”

In a multiplepoinding raised by Alexander Stuarts trustees with a view to the distribution of his estate, a claim was lodged by the trustees for behoof of Peter Stuart's children to be ranked and preferred to the tenth share of residue destined to Mrs Wyness. A claim was also lodged by the residuary legatees, who pleaded that the share of residue which would have been taken by Mrs Wyness, if she had survived the testator, fell by her predecease to be divided among the residuary legatees.

On 25th June 1898 the Lord Ordinary ( Kyllachy) ranked and preferred the claimants, Stuart's trustees, for behoof of Peter Stuart's children, to the tenth part of the residue originally destined by the truster to Mrs Wyness.

Opinion,—[ After setting forth the provisions of the settlement and codicil, his Lordship proceeded]—“The children of Peter Stuart say that this revocation makes no difference, the conditional institution in their favour being unrecalled and taking effect. The other residuary legatees, on the other hand, say that the revocation of the primary bequest operates as a revocation of the conditional institution attached to it, and that if the truster had meant otherwise the codicil was unnecessary. They say also that the language of the conditional institution is unfavourable to the theory of its independence ( first) because of the use of the word ‘devolve,’ and ( second) because the conditional institutes take only what the original legatee would have taken if she had lived, and the legacy being revoked, the original legatee, if she had lived, would have taken nothing.

It appears to me that in all such questions the point to be ascertained is the intention of the testator; and, looking to the scheme of this settlement, the presumptions applicable to a conditional institution, and the fair meaning of the language used, the just conclusion, I think, is that the testator intended no more by his codicil than to express (necessarily or unnecessarily) the lapse of Mrs Wyness' interest under his settlement.

I am not much moved by the criticism of the language of the conditional institution. The word ‘devolve’ is certainly not used in its strict sense. If it were, it would denote the transmission of a vested right, and of course there was no vested right here. On the other hand, the suggested limitation to what Mrs Wyness would have taken if she had lived appears to me to be no more than a definition of the amount of the interest which the conditional institutes were to take. The point might have had more force if the bequest had been revoked during Mrs Wyness' life.

Further, I cannot hold that a conditional institution is of the nature of a derivative right. It is really an independent right taking effect contingently, but operating when it does operate as an independent gift. A bequest to A, and if A shall predecease a certain event to B, is not, I apprehend, revoked by a revocation of the gift to A. At least, it is not so unless the intention is otherwise clear; and here I think the intention of the truster may fairly be inferred to be that Peter Stuart's children, and not his legatees generally, were to benefit by any lapse of interests conferred on the members of brothers, as distinguished from sister's families.

I am therefore of opinion that Peter Stuart's children take Mrs Wyness' one tenth share.” …

The residuary legatees reclaimed, and argued—The revocation in the codicil applied to the conditional institute as well as to the person to whom the share was originally destined— Boulcott v. Boulcott, 1853, 2 Drewry, 25.

Counsel for Stuart's trustees were not called upon.