Scottish Court of Session Decisions

William Neilson of Claddens, contractor in Glasgow, executed an inter vivos disposition in 1858 whereby he conveyed certain heritable subjects in Calton, Glasgow, to his wife and himself in liferent, and to trustees for behoof of his children (of whom there were eight) in fee. The principal question in the present case was whether the share of that property falling to one of William Neilson's sons fell under that son's will, which dealt solely with estate “left by” his father.

William Neilson died in 1865 possessed, inter alia, of heritable property in Glasgow, in addition to that which he had liferented under his inter vivos deed. He left a trust-disposition and settlement whereby he directed his whole estate, heritable and moveable, so far as not covered by the inter vivos deed, to be realised, and the residue to be divided among his whole children. He was survived by all his children, and by his widow, who died in 1881, leaving moveable estate, the residue of which by trust-disposition and settlement she directed to be divided among her whole children.

One of William Neilson's sons, Hugh Mackenzie Neilson, died in 1886, leaving a settlement under which he directed the residue of his estate, after the division of his father's and mother's estates, to be divided among his whole brothers and sisters.

Another of William Neilson's sons, John Neilson, who was resident in Galveston, Texas, U.S.A., died in 1898, leaving a will in the following terms—“After payment of all my just and lawful debts, I give, bequeath, and devise all my right, title, interest, claim, and estate as one of the children and heirs of my deceased father and mother, William Neilson and Helen Neilson, in and to the estate left by them, and situated in the city of Glasgow, Scotland, as follows, to wit—To my sister Jennett Neilson, an undivided one-eighth part thereof; to my brother James Rankin Neilson an undivided one-eighth part thereof; and the remaining three-fourths part thereof to Henrietta Magdalena Tolex and Lillie Johanna Augusta Tolex, the daughters of John Tolex of said city of Galveston, Texas, share and share alike.”

All William Neilson's children survived the period of division under his inter vivos deed and his trust-disposition and settlement, and under his widow's settlement.

At the date of the present case the estate falling under William Neilson's inter vivos deed remained in the hands of the. trustees thereunder in accordance with an agreement among his children. The estate falling under his trust-disposition and settlement had been divided with the exception of the share falling to his son John Neilson. The estate falling under his widow's settlement had been finally divided. Hugh Mackenzie Neilson's estate had been divided with the exception, inter alia, of the share to which he was entitled of the property in Glasgow falling under his father's inter vivos deed.

In these circumstances a special case was presented for the opinion and judgment of the Court by (1) the trustees under William Neilson's inter vivos disposition; (2) the trustee under Hugh Mackenzie Neilson's settlement; (3) John Neilson's immediate

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younger brother as his heir-at-law; (4) the beneficiaries under John Neilson's will; and (5) John Neilson's executor.

The third party maintained that while the estate carried by John Neilson's will to the fifth party included the share falling to the said deceased John Neilson in the final division of the estate falling under the said deceased William Neilson's trust-disposition and settlement, the property in Calton, Glasgow, on the other hand, did not fall under the last will and testament, not having been “left” by the truster, but having, on the contrary, been disposed of by him during his lifetime, and that he, the third party, was entitled, as the said deceased John Neilson's heir-at-law, to the share of the said property in Calton, Glasgow, to which the said deceased John Neilson was entitled under the foresaid inter vivos disposition, and also to the share of the said property to which the said deceased John Neilson was entitled under the said deed of settlement by the said deceased Hugh M'Kenzie Neilson, his brother.

The fourth and fifth parties on the other hand maintained that on a sound construction of his last will and testament the said John Neilson intended it to cover the whole estate coming to him through his father or mother, whether directly or indirectly, in so far as the said estate was situated in Glasgow. They accordingly maintained that the said last will and testament carried the whole estate in Glasgow which came to the said John Neilson from his father or mother, as one of their children and heirs, including therein his share of the property in Calton, Glasgow, conveyed by the said inter vivos disposition, and also the further share to which he became entitled through his deceased brother Hugh M'Kenzie Neilson, and that the said property was in terms of the said last will and testament validly bequeathed to the fourth parties.

The following were the questions of law:—“(1) Does the share of the said property in Calton, Glasgow, to which the said deceased John Neilson was entitled under the said inter vivos disposition by the said deceased William Neilson, his father, fall into intestacy of the said deceased John Neilson, and descend to the third party hereto as his heir-at-law? or (2) Does it fall under the said last will and testament of the said deceased John Neilson, and is it thereby carried to the fourth parties? (3) Does the share of said property to which the said John Neilson was entitled under his brother, the said deceased Hugh M'Kenzie Neilson's deed of settlement, fall into intestacy of the said deceased John Neilson, and descend to the said William Neilson, the third party hereto, as his heir-at-law? or (4) Does it fall under the said last will and testament of the said deceased John Neilson, and is it thereby carried to the fourth parties?”

Argued for the first, second, and third parties—It was clear from the language employed in the will that it had been prepared by a professional man; it therefore could not be liberally interpreted as in the case of a holograph testamentary writing— Dunsmure v. Dunsmure, November 22, 1879, 7 R. 261, 17 S.L.R. 134. The inter vivos disposition completely divested the granter— Robertson v. Robertson's Trustees, June 7, 1892, 19 R. 849, 29 S.L.R. 752; Smitton v. Tod, December 12, 1839, 2 D. 225; there were no circumstances in the present case that could qualify that divestiture— Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237, 12 S.L.R. 169; the property in question could not therefore be held to be within what was “left” by William Neilson. In particular, the share of that property which John Neilson was entitled to under his brother Hugh's settlement was left by that brother and not by his father.

Argued for the fourth and fifth parties—The will in question should receive a liberal interpretation. “Left” did not apply exclusively to testamentary disposition; what John Neilson intended to dispose of under his will was what he was entitled to as his father's son, whether as disponee or as heir.