Scottish Court of Session Decisions

Captain John Macdonald, master of the steamship “Incharran,” was drowned at sea on 14th September 1897, leaving a holograph mortis causa settlement, dated 7th March 1890, in the following terms:—

“I, the undersigned John Macdonald, hereby give and bequeath to my two sisters Christina and Anne Macdonald, for their own use and benefit for life, the interest derived from all my estate and effects, real and personal, and of what nature and quality soever; and I hereby appoint our uncle Duncan Macdonald sole manager of the said estate and effects, the management of which he is to retain so long as he may deem fit, paying the interest derived therefrom to my two sisters jointly or separately.

I wish it to be distinctly understood that neither of my brothers Hector and Angus Macdonald are to participate either directly or indirectly, unless indeed, that some years hence either or both of them were found to be thoroughly reformed, and leading useful, active, honest, and industrious lives, when (in the event of their two sisters being dead) those in control may then continue paying the interest, equally divided, to said Hector and Angus Macdonald, but should either or both of them be subsequently found acting with impropriety, said interest, or the delinquent's portion of it, to be thereupon stopped. I wish this condition to apply to my sisters also, but at the discretion of those in control, and in a less stringent manner.

This bequest, as also the foregoing remarks, are however subject to the following conditions, namely:—(1) That all my personal estate, large or small, is to be invested to the best possible advantage, consistent with safety, the interest only to be paid away as above, and under no circumstances is the capital to be withdrawn or handed over for sub-division so long as any of the above-named parties interested therein are living; but in the event of their decease I would wish the interest to revert to the nearest and most needful relatives on my mother's side of our family, and same to be applied to the education and upbringing of their children, if any.

(2) That this document is only to take effect on my decease, and that I reserve the right of withdrawing, cancelling, or otherwise destroying this document at any time, and from any place I may deem fit, either by a subsequent writing by myself or some other person on my behalf.

John Macdonald, on board s.s.

”Incharran,” in Lat. 33,17 N., Long. 24, 57 E. March 7, 1890.”

Captain Macdonald was never married. He was predeceased by his parents. His heirs ab intestato were the two sisters and the two brothers named in the settlement. He left no heritable estate. His moveable estate amounted to £3324, 10s. 7d. He was predeceased by his uncle Duncan Macdonald, and on 29th January 1898 William Russell Patrick, solicitor, Edinburgh, was appointed judicial factor on his estates.

Questions having arisen as to the rights conferred by the settlement, a special case was presented to the Court by (1) the judicial factor; (2) the two sisters of the testator, Mrs Christina Macdonald or Fowler with consent of her husband, and Anne Macdonald; (3) the curator bonis to Hector Macdonald, who was incapax, and Angus Macdonald; and (4) Mrs Kate Macdonald or Atherton and John Macdonald, the aunt and uncle of the testator on his mother's side, and his nearest relatives on his mother's side at his death, each of whom had five children.

The questions of law were as follows:—“(1) Are the second parties entitled to the fee of the whole estate equally between them? (2) Are the third parties entitled to the liferent of the estate upon the deaths of the second parties, and does the liferent

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of the predeceaser accresce to the survivor? (3) Are the third parties entitled, along with the second parties, to the fee of the estate? (4) Are the fourth parties entitled on the death of the survivor of the second parties, or otherwise on the death of the survivor of the second and third parties, to payment of the fee of the estate? or (5) Are they, or the survivor of them, entitled on the occurrence of either, and which, said events to the liferent of the estate?”

The parties admitted that the second parties were entitled to the liferent of the whole estate absolutely and without condition jointly so long as they were both alive, and that upon the death of one of them the survivors would be entitled to the liferent of the whole.

Argued for the second parties—There was no valid appointment of the liferent either to the third parties or to the nearest and most needful relations of the testator on his mother's side. The trustee appointed by the truster, who was to exercise the discretionary power of judging whether the brothers were thoroughly reformed and of singling out the most needful relatives, was dead. Such a discretionary power could not be exercised by a judicial factor appointed by the Court— Robbie's Judicial Factor v. Macrae, February 4, 1873, 20 R. 358. These bequests were entirely dependent on the personal opinion of the particular person selected by the truster. He having died, the bequests were void from uncertainty. The fee being undisposed of in the will had fallen into intestacy, and had vested a morte testatoris in the second and third parties— Spink's Executors v. Spink, February 16, 1894, 21 R. 551. The fee had not been given to the nearest and most needful relatives on the mother's side of the testator's family. The word “interest” was void. The term “revert” and the fact that the interest was to be applied in the education and upbringing of children showed that interest meant income and not fee. This was the proper period to find out who was entitled to the fee. The fourth parties represented all those who at a future date could contend that a fee had been given to them by the deed.

Argued for the third parties—On the death of the second parties they would be entitled to the liferent of the estate. The condition attached to their getting the liferent must be held pro non scripto. As to the fee, they adopted the argument of the second parties.

Argued for fourth parties—They must be held to be the nearest and most needful relatives of the testator on the mother's side, otherwise the special case would be irregular, all parties interested not being represented. They argued with the second parties that there was no valid bequest of a liferent to the third parties, but merely a discretionary power to give them a liferent which could not be exercised by the first party. On the death of the survivor of the second parties, or at any rate on the death of the survivor of the second arid third parties they were entitled to have the fee of the estate paid over to them. The testator by directing that as long as the second and third parties were alive the capital of his estate was not to be subdivided showed that what be meant by “interest” in the bequest to the fourth parties was interest in the capital. There was always a presumption against intestacy when the deceased had left a will. In any event they or the survivors of them were entitled to the liferent of the estate after the death of the second and third parties.

At advising—