Scottish Court of Session Decisions

William Laing, ship agent and shipowner, Leith, died on 13th July 1863, leaving a trust-disposition and settlement dated 26th March 1858, and relative codicil thereto dated 4th October 1860. The truster was twice married. By his first marriage he had four children, viz., Mrs Elizabeth Laing or Milburn, William Laing, James Laing, and Mrs Jane Leith Laing or Morrison; and by his second marriage he had three children, viz., George Henry Laing, Charlotte Laing, and Robert Laing. He was survived by his seven children, with the exception of his eldest daughter Elizabeth Laing or Milburn, who predeceased him leaving issue. He was also survived by his widow Mrs Georgina Davidson or Laing.

By the fourth purpose of his trust-disposition and settlement he directed his trustees, so soon as they had realised his estate, to divide it into three parts or shares, and to pay his widow one part or share, and “the remaining two-third parts or shares I direct my said trustees to divide equally among all my children, … “And the shares of the said George Henry, Charlotte, and Robert Laing, and any other child or children procreated or that may be procreated as aforesaid, I direct my said trustees to hold the same till they respectively attain the age of twenty-one years or be married, whichever of these events shall first happen, when the share of each of them shall be payable to him or her on respectively attaining majority or being married as aforesaid: Declaring that my said trustees shall, till my said younger children” ( i.e., the children of his second marriage, viz., George Henry, Charlotte, and Robert) “attain majority or be married, pay and apply the whole or as much as they may consider proper of the annual interest or profits of their said respective shares towards their suitable maintenance and education; and declaring that in the event of any of my said younger children dying without leaving lawful issue of his or her body, the share or shares of such of them as shall so predecease shall fall and accresce to and be divided equally among my whole surviving children and the heirs of such of them as shall predecease leaving lawful issue, such issue taking the share which would have fallen to the parent if he or she had survived.”

By his codicil the truster, on the narrative that he had resolved to make alterations on his foregoing trust-disposition and settlement, directed his trustees “to pay to my son James the annual interest or profit only of the shares provided to him, and to which he may succeed in the event of the predecease of his brothers or sisters in liferent, for his liferent use allenarly, which annual interest or profit shall and is hereby declared to be alimentary, and shall not be subject to his debts or deeds, nor liable to the diligence of his creditors, nor be assignable by him, but shall be strictly alimentary, and the fee or capital of said share or shares shall be held by my said trustees for behoof of and be paid to the lawful issue of my said son equally among them, share and share alike, in fee, and in like manner to pay to my daughters Elizabeth, Jane, and Charlotte the annual interest or profits of the shares provided to them respectively, and to which they may severally succeed in the event foresaid, in liferent for their liferent use respectively allenarly, and the fee or capital thereof shall be held by said trustees for behoof of the lawful issue of my said daughters respectively, and paid to the issue of each of them respectively and equally among said issue, share and share alike, which liferent hereby provided to my said daughters shall be paid to them respectively on their own several receipts, and shall be exclusive of the jus mariti of their husbands, and shall not be subject to the debts or deeds of their husbands, nor liable to the diligence of their creditors, and with these alterations I declare that my foregoing trust-disposition and settlement shall stand in full force.”

The trustees, on the death of the truster, realised his estate, which amounted, after deducting debts, expenses, &c., to £12,388. The shares falling to Mrs Laing, the truster's widow, and William Laing, the eldest son, were at once paid. The shares falling to Mrs Milburn's children, George Henry Laing and Robert Laing, were subsequently paid as they respectively fell due, and the shares falling to James Laing, Jane Leith Laing (Mrs Morrison), and Charlotte Laing in liferent were retained in the hands of the trustees, and the interest paid over to them.

On 28th July 1898 Charlotte Laing died unmarried, after attaining majority, leaving a holograph will and testament disposing of her whole estate. After her death a question arose regarding the succession of the share of the truster's estate, viz., £1168, liferented by her, and for the settlement of the point a special case was presented to the Court by (1) the sole surviving trustee under the testator's trust-disposition and settlement; (2) Mrs Elizabeth Laing or Milburn's children, James Laing, Jane Leith Laing or Morrison, George Henry Laing, and Robert Laing; (3) Charlotte

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Laing's executor-dative; and (4) the trustees and executors of William Laing, who died on 10th October 1891 without issue, and leaving a will disposing of his whole estate.

The contentions of the parties were thus stated in the special case—“8. The third party maintains that he, as executor-dative of the said Charlotte Laing, is entitled to payment of the share (amounting to £1168) liferented by her, in respect that, on a sound construction of the trust-disposition and codicil of the truster, the fee thereof vested in her, subject to defeasance only in the event of her leaving issue. The second parties maintain that, on a sound construction of said testamentary writings of the truster, the share which would have fallen to the issue of Charlotte Laing, if she had left any, falls to be divided in this way—One-fifth part to the children of the truster's daughter Mrs Elizabeth Laing or Milburn, and one-fifth part to each of the truster's children James, Jane, George, and Robert. The fourth parties maintain that on a sound construction of said testamentary writings of the truster, the said share has fallen into intestacy, and therefore falls to be divided in this way—one-seventh part to them (the fourth parties); one-seventh part to the children of the truster's daughter Mrs Elizabeth Laing or Milburn; one-seventh part to each of the truster's children James, Jane, George, and Robert; and one-seventh part to the third party.”

The questions of law wrere—“(1) Is the share of the truster's estate which was liferented by the deceased Charlotte Laing now payable to the third party? (2) Does said share fall to be paid to the second parties in the proportions set forth in the contention of the second parties in article 8 hereof? or (3) Does said share fall to be paid to the second, third, and fourth parties in the proportions set forth in the contention of the fourth parties in article 8 hereof?”

Argued for the third party—The fee of Charlotte Laing's share of the trust-estate was vested in her at the date of her death. The only alteration that the codicil made was to provide that if she had children her fee was to be restricted to a liferent. She not having had children, this provision never took effect. The case was ruled by Lindsay's Trustees v. Lindsay, December 14, 1880, 8 R. 281, and Dalglish's Trustees v. Bannerman's Executor, March 6, 1889, 16 R. 559.

Argued for the second parties—Charlotte Laing had only a liferent of her share of the truster's estate, not a fee subject to defeasance. The present case was distinguished from those quoted on behalf of the third party, in respect that in the present case there was a proper destination-over in the original deed. That taken along with the codicil showed that Charlotte's right was confined to a liferent, and that under the clause of survivorship the second parties were entitled to the fee of her share.

Argued for the fourth parties—They agreed with the second parties that a liferent was all that had been given to Charlotte Laing, but they contended that the fee had fallen into intestacy. The original settlement and the codicil must be read as one deed, and if this was done it was plain that there was in the present case no independent unqualified gift to the immediate beneficiary capable of taking effect where the special trust created by the codicil failed. This was essential to show that the original gift had not been displaced— Muir's Trustees v. Muir's Trustees, March 19, 1895, 22 R., Lord M'Laren's Opinion, 557. A direction to divide was not in itself a gift— Fulton's Trustees v. Fulton, February 6, 1880, 7 R. 566. If Charlotte was entitled to a liferent only, then the fee must fall into intestacy, because the survivorship clause did not effectually convey it,