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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ensor's Trustees v. Richter [1900] ScotLR 37_424 (16 February 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0424.html
Cite as: [1900] SLR 37_424, [1900] ScotLR 37_424
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
A testator directed that the residue of his estate should, on the expiration of a liferent, be divided among his nephews and nieces nominatim, “equally among them, share and share alike.” He declared that the bequest should not vest until the death of the liferenter or his own death, should the liferenter predecease him, and that in the event of any of the nephews or nieces predeceasing the period of vesting, their share should accresce to the survivors. A nephew predeceased the testator without issue, and a niece survived the testator but predeceased the liferenter, leaving a daughter. Held that in virtue of the conditio si institutus sine liberis
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decesserit the daughter was entitled to her mother's share, but that she was not entitled to participate in the share which had lapsed by the death of the nephew.
The late William Edward Ensor died in June 1887 leaving a trust-disposition and settlement, which contained the following clause:— “Lastly, with regard to the disposal of the fee of the said free residue and remainder of my said whole moveable and personal estate, I direct and appoint my said trustee, as soon as conveniently may be after the death of the survivor of my said sisters, the said Mary Ensor or Murray and Martha Ann Ensor, or after my death in the event of my surviving both of my said sisters, to realise and convert into money the said residue and remainder of my said estate, and to pay over and deliver the said sum so to be realised to my nephews and nieces after mentioned, equally among them, share and share alike, videlicet— Henrietta Bowman or Adams, wife of Arthur Fulford Adams, Eliza Bowman, Mary Bowman or Carey, widow of Falkland Carey, Emily Rose Bowman, and Caroline Shew Colonna Bowman or Crang, wife of Captain John Crang, all children of my deceased sister, Eliza Shepherd Ensor or Bowman, widow of William Flockhart Bowman; Henrietta Annie Ensor or Denton, wife of John Denton; William Henry Ensor, Frederick Ernest Ensor, and Amelia Mary Ensor, all children of my brother, the said Henry George Ensor; and George William Rome, Mary Murray Rome, William Edward Ensor Rome, and Henry Flockhart Rome, all children of my deceased sister Amelia Rebecca Ensor or Rome, widow of Robert Moncreiff Rome: Declaring that in the event of any one or more of my said nephews and nieces hereinbefore named predeceasing the survivor of my said sisters or predeceasing me in the event of my surviving her, then such share or shares of the said residue of my estate provided to such predecessor or predecessors shall go and accresce to the survivors or survivor of my said nephews and nieces, equally among them, share and share alike; and further, declaring that the provision of the share or shares of the said residue of my said estate conceived in favour of my said nephews and nieces shall not vest in them till the determination of the said liferent by the death of the survivor of my said sisters, or in the event of her predeceasing me, until my death.”
Mr Edward Ensor was survived by his sister Mrs Martha Ann Ensor, and by all the above-named nephews and nieces except George William Rome. Miss Martha Ann Ensor enjoyed a liferent of the free residue of the estate until her death in April 1898. One of the nieces mentioned in the settlement, Mrs Mary Murray Rome or Richter, died in March 1892 leaving a daughter, Mrs Fredericke Amalia Richter. The remaining eleven nephews and nieces survived the liferentrix.
Questions having arisen as to the disposal of the shares of residue bequeathed to George William Rome and Mrs Richter, a multiplepoinding was brought in which the fund in medio was the sum of £836, 11s. 11d., being one-twelfth of the whole residue.
Claims were lodged for (1) Miss Richter, and (2) for the surviving nephews and nieces mentioned in the settlement, with the exception of William Edward Ensor Rome.
Miss Richter maintained that she, as in right of her mother, the said Mary Rome or Richter, who survived the testator but predeceased the last surviving liferentrix, was entitled by virtue of the conditio si sine liberis to the fund in medio, being the one-twelfth share of residue which her mother, if she had survived the last surviving liferentrix, would have taken, and claimed to be ranked and preferred to the whole fund in medio.
The remaining nephews and nieces maintained that the whole residue of William Ensor's trust-estate fell to be divided equally among those of his nephews and nieces called to succeed thereto who survived his sister and liferentrix Miss Martha Ann Ensor, being eleven in number, and that they and the said William Edward Ensor Rome were entitled equally among them to the whole fund in medio. Alternatively, they maintained that in the event of the real raiser Frederike Amalia Richter being entitled to succeed under the conditio si sine liberis, her right extended only to the one-thirteenth share of the residue originally bequeathed to her mother Mary Murray Rome, and did not include a proportion of the one-thirteenth share destined to George William Rome.
They claimed to be ranked and preferred equally with William Edward Ensor Rome, each to one-eleventh share of the fund in medio.
On 17th June 1899 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Sustains the claim for the said Friedericke Amalia Richter, and ranks and prefers her to the whole fund in medio in terms thereof : Repels the claim for Henrietta E. Bowman and others, and decerns.”
Opinion.—“I have not had the benefit of a full argument in this case. The case was called at 11.30 o'clock, but there was no appearance by agents or counsel, except by counsel for the claimant Miss Richter. I accordingly have been obliged to hear the case ex parte, and to decide it on an ex parte argument. But having heard Mr Kemp and been referred by him to the leading authorities, I am of opinion that Mr Kemp is entitled to judgment. It appears to me that the general question of the application of the conditio si sine liberis is settled in Mr Kemp's favour by the decision in the case of Waddell's Trustees, 24 R. 189, not to mention earlier cases. And as regards the minor question, viz., whether the claimant Miss Richter is entitled to participate in the lapsed share of George William Rome, who appears to have predeceased the testator, I am of opinion that the case does not at all raise the question raised in the case of Young v. Robertson, 4 Macq. 337. In other words, it is not at all the same case as would have arisen if George William Rome had survived
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the testator but predeceased the period of vesting. In short, the limitation of the conditio si sine liberis to the share which the parent would have taken if he had survived, while it may exclude participation in devolved shares, does not, in my opinion, exclude also participation in lapsed shares. I therefore sustain the claim for Miss Richter and her father, and repel the claim for the other and competing claimants.” The claimant Mrs Bowman or Adams and others reclaimed. At the hearing they did not dispute the Lord Ordinary's judgment in so far as it found the claimant Miss Richter entitled to her mother's share. With regard to the share of George William Rome, they argued that a child taking her parent's share in virtue of the conditio si sine liberis was not entitled, in the absence of any indication of an intention to the contrary in the deed, to anything more than the share originally given to the parent. The conditio has never been extended so as to give the child a right to participate in a lapsed share, which would have accrued to the parent, had he or she survived the period of vesting— Young v. Robertson, February 14, 1862, 4 Macq. 337; M'Nish v. Donald's Trustees, October 25,1879, 7 R. 96; Hendersons. Hendersons, January 9, 1890, 17 R. 293; Cumming's Trustees v. White, March 2, 1893, 20 R. 454; Neville v. Shepperd, December 21, 1895, 23 R. 351 per Lord M'Laren at page 357. Accretion here did not take place ex lege, but only in virtue of the survivorship clause— Earl of Lauderdale, May 19, 1830, 8 S. 771; Clelland v. Gray, June 20, 1839, 1 D. 1031; Thornhill v. Macpherson, Jan. 20, 1841, 3 D. 394; Paxton's Trs. v. Cowie, July 16, 1886, 13R. 1191.
Argued for the respondent—The respondent was entitled to all that her mother would have received had she survived the period of distribution, that is, to the mother's own share and a proportion of the lapsed share. There was no artificial rule to the effect that the conditio gave the child the parent's original share and no more. The case only limited the child's right in cases where the share in question was that of an institute who survived the testator but predeceased the period of distribution— Aitken's Trustees v. Wright, December 22, 1871, 10 Macph. 275; Muir's Trustees, July 12, 1889, 16 R. 954; M'Culloch's Trustees, May 14, 1892, 19 R. 777.
At advising—
Two questions are raised—(1) whether Miss Richter is entitled in respect of the conditio si sine liberis decesserit to any share of the residue, and (2) if she is entitled to a share of it, whether that share is one-twelfth or one-thirteenth part.
The Lord Ordinary hassustained Miss Richter's claim, which is to one-twelfth, thereby holding in effect that she has right to the share bequeathed to her mother by the testator's settlement, and also to participate, equally with the nephews and nieces who survived the liferentrix, in the share bequeathed to George William Rome. The Lord Ordinary in the note to his interlocutor says that “the limitation of the conditio si sine liberis decesserit to the share which the parent would have taken if he had survived, while it may exclude participation in devolved shares, does not, in my opinion, exclude also participation in lapsed shares.”
I agree with the Lord Ordinary in thinking that Miss Richter is, by virtue of the conditio si sine liberis decesserit, entitled to the one-thirteenth share of the residue bequeathed to her mother, but I am unable to concur with his Lordship in the view that she has also right to participate in the share bequeathed to George William Rome, and which lapsed by his having predeceased the testator.
I may say, in the first place, that I think that there is such a severance of the interests given to the nephews and nieces in the residue as to prevent accretion from taking place ex lege, in accordance with the principles explained in the case of Paxton's Trustees v. Cowan, 13 R. 1191. The bequest is to the nephews and nieces “equally among them share and share alike”—clear words of severance.
The next question, assuming that the thirteenth share bequeathed to Mrs Richter did not accresce to the surviving nephews and nieces ex lege, is whether it passed to her daughter Miss Richter by virtue of the conditio si sine liberis decesserit, or to the surviving nephews and nieces under the ulterior destination in their favour contained in the settlement, and I consider that it passed to Miss Richter. The first requisite, viz., that the parent should be
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The remaining question is, whether Miss Richter is entitled to participate in the thirteenth share which lapsed by George William Rome having predeceased the testator, and the first fatal objection which seems to me to stand in the way of that claim being sustained is that her mother was not instituted to that share. If her mother had survived the period of division specified in the settlement, she would, by virtue of the ulterior destination of the shares of predeceasing nephews and nieces therein contained, have been entitled to participate in the share bequeathed to George William Rome, but she did not survive to fulfil the condition of such participation. It appears to me to have been settled by a long series of decisions that the conditio si sine liberis does not apply to such a case. On this subject I may refer to the judgment of the Lord Chancellor in Young v. Robertson, 4 Macq. 337, and authorities there cited. The rule has not, as the Lord Ordinary appears to think, been limited to devolved shares, but has in a number of cases been applied to lapsed shares. Thus in Graham's Trustee v. Graham, 6 Macph. 820, it was held that the right to participate in the lapsed share of one of the beneficiaries was by the terms of the deed limited to brothers and sisters (also beneficiaries), to the exclusion of the issue of one of them who had predeceased. In giving judgment Lord President Inglis said—“I think that the question as to the application of the conditio si sine liberis to a lapsed share is very important. Where a father has divided his estate among his children, without specially providing for the event of any of them predeceasing the period of vesting, or the time of payment, leaving issue, then the rule applies. But suppose that the child so predeceasing and leaving issue is himself predeceased by a brother or sister who had no children, and whose share in the father's succession had therefore lapsed, and would have accresced in part to the second deceaser had he survived the term of payment or of vesting, I think that the child of the second deceaser would not be entitled to participate in that lapsed share.” If in this dictum the words “uncle who has placed himself in loco parentis” he, substituted for “father” and “nephew or niece” for “child,” it would be directly applicable to the present case. Similar views were expressed in M'Nish v. Donald's Trustee, 7 R. 96; Henderson's Trustees v. Henderson, 17 R. 293; and Camming's Trustees v. White, 20 R. 454. In the case of Henderson's Trustees v. Henderson the condition si sine liberis was expressed, and Lord President Inglis said that he could see no distinction in principle between the case in which the conditio is expressed, and that in which it is implied. “The principle in both cases is simply this, whether the conditio is implied or expressed, that the share of the predeceasing parent goes to his or her issue—that is the original share of the parent—and not any further provision that may come to the parent by the lapse of a legacy to some predeceasing legatee in virtue of any other provision in the deed.”
Miss Richter's counsel relied especially on the cases of Aitken's Trustees v. Wright, 10 Macph. 275; M'Culloch's Trustees, 19 R. 777; and Muir's Trustees v. Muir, 16 R. 954, but it does not appear to me that there is anything in these cases at variance with the views now expressed.
The Court pronounced this interlocutor:—
“The Lords having considered the reclaiming-note for the claimants Mrs Henrietta E. Bowman or Adams and others against the interlocutor of Lord Kyllachy, dated 17th June 1899, Recal the said interlocutor : Sustain the alternative claim for said claimants, and prefer them on the fund in medio in terms thereof: Quoad ultra sustain the claim for the claimant Fredericke Amalia Richter, and rank and prefer her to the balance of the fund in medio, and decern : Find no expenses due to or by either party since the date of the Lord Ordinary's interlocutor, and remit to the Lord Ordinary to proceed with the cause.”
Counsel for the Reclaimers— Chree. Agent— J. Knox Crawford, S.S.C.
Counsel for the Respondent— A. S. D. Thomson— Kemp. Agent— A. C. D. Vert, S.S.C.