Scottish Court of Session Decisions

Peter M'Donald, sometime blacksmith, afterwards feuar in Charlestown of Aberlour, in the county of Banff, died on 11th June 1881, survived by (1) his wife Mrs Margaret Kemp or M'Donald; (2) his natural son John M'Donald, blacksmith; and (3) his only lawful child and heir-at-law James M'Donald, private in the 93rd Regiment of Foot. He left a trust-disposition and settlement dated 9th February 1878, whereby he conveyed to trustees his whole estate, particularly, inter alia, (2) a certain specified piece of ground in Aberlour with the houses thereon, marked number twenty on a certain specified plan.

In his settlement the testator, inter alia, provided as follows:—“I appoint my said trustees to pay, assign, and dispone the whole of my heritable and real estate above conveyed to the said Margaret Kemp or M'Donald, my wife, in case she shall survive me, in liferent for her liferent use allenarly; … and I also appoint my said trustees, on the death of the said Margaret Kemp or M'Donald, to assign and dispone the whole remainder of my heritable estate above conveyed, including the two feu properties second and third above conveyed, being those marked respectively numbers twenty and nine on the said plan, to my son James M'Donald, private in the Ninety-third Regiment of Foot, presently in Ireland, whom failing without lawful issue to my heir-at-law.” (Number nine did not form part of testator's estate at his death.)

Margaret Kemp or M'Donald survived her husband, and enjoyed the liferent of the said piece of ground number twenty down to the date of her death in March 1905. James M'Donald died in May 1884 unmarried, leaving a disposition and settlement by which he conveyed to his natural brother John M'Donald his whole estate, and in particular the foresaid heritable, property in Aberlour. John M'Donald died in September 1902 leaving a holograph will by which he appointed his wife and his son trustees to carry out his wishes. The heir-at-law of the testator at his own death was his son, the said James M'Donald, but as at the date of the death of his widow was Alexander M'Donald, who was the eldest son of the eldest son of the younger brother of the testator.

Questions having arisen regarding the right to the fee of the property number twenty, this special case was presented for the opinion and judgment of the Court. The parties to the special case were (1) the Reverend John Smith Sloss and others, the trustees acting under the testator's settlement, first parties; (2) the trustees of John M'Donald, who were his widow and son, second parties; and (3) Alexander M'Donald, third party.

The second parties contended that on a sound construction of the testator's trust-disposition and settlement the fee of the said heritable property vested in his lawful son James M'Donald a morte testatoris, and was carried by his settlement to his natural brother John M'Donald, and was thereafter carried to the second parties under the last will and testament of the said John M'Donald. The third party contended that the said heritable property did not vest in the late James M'Donald, but that vesting was suspended till the death of the liferentrix, and that the third party as the testator's heir-at-law at that date was entitled to a conveyance of the property. The first parties as trustees of

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the said Peter M ‘Donald senior desired the direction of the Court regarding the said question.

The questions of law put to the Court were as follows:—“Did the heritable property second conveyed by the testator in his said trust-disposition and settlement vest in his son, the said deceased James M'Donald, a morte testatoris, and are the second parties as trustees foresaid now in right of the same; or was the vesting of the said property suspended till the death of the testator's widow, and is the third party, as the testator's heir-at-law at that date, now in right of the same.”

Argued for the second parties—The fee of the property in question vested in James a morte testatoris, by whom it was conveyed to his natural brother John, who in turn conveyed it to the second parties. There was nothing here to displace the general rule that heir-at-law meant heir-at-law at the date of the testator's death— Haldane's Trustees v. Murphy, December 15, 1881, 9 R. 269, 19 S.L.R. 217; Gregory's Trustees v. Alison, April 8, 1889, 16 R. (H.L.) 10, 26 S.L.R. 787; Taylor and Others v. Gilbert's Trustees, July 12, 1878, 5 R. (H.L.) 217, 15 S.L.R. 776. As James was himself the heir-at-law there was in effect no destination-over and vesting was not suspended.

Argued for the third party—Vesting was suspended till the death of the liferentrix, and the third party as heir-at-law of the testator at her death was entitled to the property. There was no gift here other than the direction to convey, just as in Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142, 18 S.L.R. 103, and the fact that the destination-over was to my heir-at-law and not to some person nominatim made no difference. My heir-at-law meant my heir at the time when, the primary institutes having failed, the succession opened. There was not here vesting subject to defeasance; that would be to carry that doctrine further than it had ever been carried— Gardner v. Hamblin, February 28, 1900, 2 F. 679, Lord M'Laren at 685, 37 S.L.R. 486; for here there was between the ultimate legatee and the gift not merely the possibility of children but the existence of James. The persons primarily called in Haldane ( cit. supra), and Gregory's Trustees ( cit. supra) were called not as fiars but as liferenters; all that stood between them and the gift was the contingency of children being born.