Scottish Court of Session Decisions

An action of multiplepoinding was raised at the instance of the trustees of the late William Gibson for declarator that the pursuers were only liable in once and single payment of the means and estate belonging to William Gibson, which had been conveyed to the pursuers as trustees under his trust-disposition and settlement dated 11th October 1867; and for the exoneration and discharge of the pursuers.

The following account of the nature of the action and of the clauses of the trust-deed to be construed is taken from the opinion of the Lord Ordinary:—“This is a multiplepoinding brought by the trustees of William Gibson, who died in 1868, survived by his widow, who died in 1897. She liferented the whole estate, and on her death it became necessary to divide the estate; and this multiplepoinding has been brought for the determination of the questions which have arisen in regard to the construction of his disposition and settlement.

The third purpose of the trust-deed relates to the widow's liferent, and is not material to the questions now to be decided. These depend upon the fourth and fifth

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purposes, which are quoted in full in the record. By the fourth purpose the trustees are directed to hold the estate and pay the income of it to the truster's two daughters, Elizabeth, afterwards Mrs Wilson, and Margaret, ‘equally until the youngest of them reaches the age of fifty years complete, on which event’ the truster directed his trustees to ‘convey to them equally in fee, and to the heir of the last survivor of them my whole heritable estate above disponed as their own absolute property.’ These provisions were declared to be in satisfaction of legitim.

The fifth purpose of the trust is as follows:—‘In the event of the failure of the said Elizabeth Gibson and Margaret Gibson, or the issue of their bodies, my said trustees are hereby directed to assign, dispone, convey, and make over the whole estate, both heritable and moveable, above conveyed, to and in favour of the said James Gibson, accountant, Clydesdale Bank, Muirkirk, and Mrs Baird or Vass, spouse of Andrew Vass, miner, Lugar, and the issue of their respective bodies equally per stirpes.’

What has happened is that the truster's two daughters survived him, but neither attained the age of fifty. Margaret died in 1872 unmarried. Elizabeth, who became Mrs Wilson, died in July 1883 intestate. She was survived by one child, who died in infancy in September 1883, being his mother's heir. James Wilson, her husband, survived his son and was his heir, and died in December 1883. James Gibson, mentioned in the fifth purpose, died on 11th November 1896, thus predeceasing the widow. Mrs Vass is dead, but I do not think the exact date of her death is mentioned. She has been survived by two children, John Vass and Mrs Macdougall, who are claimants.

The claimants are (1) the heir and next-of-kin of James Wilson, husband of Elizabeth Gibson, daughter of the truster. They represent him and say that he represented his wife through her son; (2) James Gibson's trustees; and (3) John Vass and Mrs Macdougall.

Wilson's representatives, i.e., the representatives of Elizabeth Gibson, maintain that the estate vested in her and her sister a morte testatoris, and in her as the survivor of the two; or otherwise they claim under the destination to Elizabeth Gibson's heirs. As a third alternative they claim that if these claims be rejected that part of the estate destined to James Gibson has fallen into intestacy.

Gibson's trustees maintain that the vesting took place on the death of the survivor of the two daughters.

John Vass and Mrs Macdougall maintain that there was no vesting until the death of the widow.”

The Lord Ordinary on the 26th July 1898 pronounced an interlocutor whereby he, inter alia, repelled the claims of Mr Thomas Wilson and Miss Elizabeth Wilson (heir and next-of-kin of Mr James Wilson), and found “that the expenses fall to be paid out of the fund in medio.”

His Lordship in the course of his opinion said—“The deed is, in my opinion, exceedingly ill framed, and it is very difficult to arrive at its true construction.”

Mr Thomas Wilson reclaimed, and the First Division on 27th June 1899 adhered to the interlocutor of the Lord Ordinary.

Counsel for the reclaimer moved for expenses out of the fund in medio, on the ground that owing to the obscurity of the trust-deed he was justified in subjecting to review the decision of the Lord Ordinary.