Scottish Court of Session Decisions

The trust-disposition and settlement was made in November 1884, long after the decisions in Fisher v. Dixon and other cases of that class, and at a time when the prevalent practice of conveyancers had come to be to make repudiation by a child infer the forfeiture of any gift made by the settlement not only to him but to his children. I consider this to be a very reasonable practice, seeing that if (to take the present case) John was allowed to take his legitim, and his children were permitted to claim the fee of an equal share of the residue upon his death, John and his children collectively would obtain a larger proportion of the estate than the other children, contrary to the intention of the truster. The decision in the case of Campbell's Trustees v. Campbell (16 R. 1007) appears to me to support the views now expressed.

Other questions are put in the case, but, if the view now stated in regard to the effect of John having claimed his legitim is correct, they do not arise.

Lord Adam—The testator directed that, if any child should claim his legal provisions, he should forfeit his right to any share or shares of the estate, and the share or shares of such child should in that event accresce to the other sisters and brothers of the forfeiting child and their heirs. One of the sons, John, has claimed his legal provisions, and has thereby forfeited any right to a share of the estate. But John's position was this, he had a liferent only of a share of the estate, the fee of the share being held by the trustees for his children; and the question arises whether John has forfeited his own liferent only, or whether by claiming his legal provisions he has also forfeited any right of his children to the fee of the share. That is the question which arises in this case. Now, it appears to me that question depends on what meaning is to be attached to the words “share or shares” of such child which are to “accresce.” What did the testator mean when he used these words? Is it as your Lord—ship said merely the interest of John in that share, or is it not only that interest but also the fee which was given to the children? Now, that takes us back to consider the settlement generally to see what meaning the testator himself attached to the words “share of such child”—whether he meant the share itself or merely the interest in the share? Now, what the testator did with reference to the residue was this. Upon page 13 of the print there is the clause in which he divided the residue of his estate into six equal shares. One of these he gave to his son Peter under certain deductions. A second share he gave in'similar terms to Mary Ann, and the third he gave to James under similar deductions, so that the whole of these shares were given to these three children. With reference to the other three shares his direction to the trustees was this:—“My trustees shall hold and apply one of said shares for behoof of my son John and his lawful children, or their lawful issue, whom failing,” &c. The second share was given to his son Alexander in exactly similar terms, and the sixth he gave to his son Duncan in exactly similar terms, deductions in each case being made from the share to be paid to them. We see from a subsequent part of the deed that these shares were to be held by the trustees—in John's case for John in liferent allenarly and his children in fee. Then he goes on to direct that the sums deducted from the several shares of the children should he made into a cumulo sum, and that cumulo sum he directed to be divided and paid in the same way as the original shares. And then he goes on to what appears to me to be a very important clause, and therefore I shall read it—“It is hereby declared, with reference to the whole of the shares hereinbefore provided, that if any of my said children shall predecease me leaving lawful issue, such issue shall he entitled to the share or shares, original and accruing, which their parent would have taken by survivance;” and then comes these words, “the share of any child predeceasing me without leaving lawful issue shall be divided” in the same manner as the original shares. It will he observed that the testator, in speaking of shares, makes no distinction whatever between the shares which were to be paid to the three first children in fee and the shares which were to be held for the three last—mentioned children in liferent. He refers to the whole of these shares, and speaks of them all without distinction; and it will be observed that the words “share of any child predeceasing me” apply to the one set of shares as much as to the other, and therefore it appears to me to be clear in this part of the deed that he uses the word share of a child, equally, whether it refers to the share of a child that was to be paid in fee or the share that was given in life—rent and to the child in fee. Therefore I think it is clear from this clause of the deed, that when the testator speaks of “share” he means the share itself, whether it he one in fee or whether it be one to be held by the trustees in liferent. Having done that, he goes on in the next clause to speak of the shares of the three latter children—John, Alexander, and Duncan, which just comes to this, that the share is to be held and applied by the trustees for the children in liferent allenarly, and their children in fee; and then there is this declaration, that there should he no vesting until the expiry of the liferent. He deals with each son severally and separately, but the provisions in regard to each are identical. These being the provisions of the deed, we are brought back to the forfeiture clause to see—having ascertained in what sense the testator speaks of the share of a child—if it applies to this clause. In dealing with this clause the testator says, “such child shall forfeit all right to any share or shares,” and the share or shares of such child or children shall in that event accresce to the brothers and sisters and their issue. I think it is

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