Scottish Court of Session Decisions

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Cite as: [1908] SLR 349, [1908] ScotLR 349

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SCOTTISH_SLR_Court_of_Session

Page: 349↓

Court of Session Inner House Second Division.

Thursday, January 23. 1908.

45 SLR 349

Duff's Trustees and Others

v.

Leighton's Executor.

Subject_1Succession
Subject_2Trust
Subject_3Vesting
Subject_4Survivorship Clause — “Without Issue” — Direction to Sell Heritable Subject and Divide Proceeds on Death of Liferentrix.
Facts:

A testator directed his trustees to convey a certain heritable property to his sister M. in liferent, and directed them after her death to sell the property and divide the free proceeds equally among his nephews and nieces nominatim, “and, failing any of them without issue, to the survivors and survivor of them equally if more than one.”

Held that “without issue” here meant without leaving issue at the period of division, and consequently that nothing had vested in a niece who had survived the testator but predeceased the liferentrix leaving a child, or in the child, who had also predeceased the liferentrix.

Headnote:

Thomas Garland, merchant and shipowner, Dundee, died on 25th December 1878, leaving a trust-disposition and settlement dated 17th January 1872, whereby he conveyed to trustees his whole estate, heritable and moveable, including, inter alia, “in the second place,” certain heritable property in Blackness Terrace, Dundee.

The sixth purpose of the trust-disposition and settlement was—“ In the sixth place, my said trustee shall, as soon as convenient after my death, convey the foresaid property belonging to me at Blackness
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Terrace, being the subjects secondly before disponed, to and in favour of the said Miss Mary Garland, my sister, in liferent for her liferent use allenarly during all the days of her life after my death: And after the death of the said Miss Mary Garland, I direct my said trustees to sell and dispose of the foresaid subjects at Blackness Terrace in one lot, and to divide the free proceeds thereof equally among my said nephews and nieces, Thomas Garland, Joseph Garland, Christian Garland, Agnes Garland, Elizabeth Garland, and Ann Garland, and, failing any of them without issue, to the survivors and survivor of them, equally if more than one.”

The truster was survived by his sister Mary Garland and by the nephews and nieces mentioned in the sixth purpose. Christina Garland (named in the settlement Christian Garland) afterwards became the wife of Andrew Lowden; Agnes Garland became the wife of John Stewart Duff; Elizabeth Garland became the wife of Robert Leighton; and Ann Garland became the wife of James Scott. The truster's sister Mary Garland enjoyed the liferent of the subjects at Blackness Terrace, Dundee, until her death on 10th January 1885. Mrs Elizabeth Garland or Leighton died intestate on 20th September 1879, leaving one child, Eliza Robina Garland Leighton, who died on 26th December 1879, both thus predeceasing the liferentrix. The other nephews and nieces survived the liferentrix.

A question having arisen among the parties interested as to whether Elizabeth Garland, afterwards Mrs Elizabeth Garland or Leighton, had a vested right in the property situated at Blackness Terrace at her death, a special case was presented for the opinion of the Court.

The parties to the special case were—(1) John Stewart Duff and others, the trustees of the deceased Mrs Agnes Duff, first parties; (2) the husband and children of Mrs Ann Scott, now deceased, second parties; (3) Robert Leighton, as executor-dative qua next-of-kin of Eliza Robina Garland Leighton, his daughter, and as an individual, third party; (4) the judcial factor on the trust estate of Thomas Garland, now deceased, fourth party; (5) the testamentary trustees of Joseph Garland junior, fifth parties; (6) the testamentary trustees of Mrs Christina Lowden, sixth parties.

The party of the third part contended that Mrs Elizabeth Garland or Leighton had a vested right to one-sixth share pro indiviso of the property at Blackness Terrace, Dundee, as at her death. On the other hand, the party of the fourth part contended that vesting did not take place until the date of the death of Mary Garland the liferentrix, and that accordingly Mrs Elizabeth Garland or Leighton had no vested right as at her death, and in this contention the parties of the first, second, fifth, and sixth parts concurred.

The question of law was—“Had the said Elizabeth Garland, afterwards Mrs Elizabeth Garland or Leighton, a vested right to one-sixth share pro indiviso of said property situated at Blackness Terrace, Dundee, as at her death? or, Was vesting postponed till the date of the death of the liferentrix of said property, the said Mary Garland?”

Argued for the first, second, fourth, fifth, and sixth parties—A survivorship clause was referable to the period of division— Young v. Robertson, February 14, 1862, 4 Macq. 314. There could be no vesting, for there was no gift, till the occurrence of the death of the liferentrix, the period of division— Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142, 18 S.L.R. 103; Forbes v. M'Condach's Trustees, December 12, 1890, 18 R. 230, 28 S.L.R. 188. Though “failing issue” more usually meant without having had issue, as in Cunningham v. Cunningham, November 29, 1889, 17 R. 218, 27 S.L.R. 106, yet here it meant without leaving issue surviving the liferentrix. The destination to issue was just the primary destination prolonged— Hendry's Trustees v. Hendry, January 31, 1872, 10 Macph. 432, Lord Kinloch at p. 437, 9 S.L.R. 263.

Argued for the third party—The primary and usual meaning of “without issue” was without having had issue— Carleton v. Thomson, July 30, 1867, 5 Macph. (H.L.) 151, 4 S.L.R. 226; Steel's Trustees v. Steedman, December 31, 1902, 5 F. 239, 40 S.L.R. 202. The destination-over to survivors could not operate, as Mrs Leighton had had issue. Vesting took place in her a morte testatoris, subject to defeasance in the event of her predeceasing the liferentrix without having had issue. The event causing defeasance had not happened.

Judgment:

Lord Justice-Clerk—I cannot say that I think the interpretation of this deed presents any serious difficulty. It is very plain on the face of it that the gift here is a gift to certain people on a certain event, that event being the death of the liferentrix; and the gift takes the form of a direction to trustees after the death of the liferentrix to sell and dispose of the subjects and to divide the proceeds among certain persons named, who are the testator's nephews and nieces, and, “failing any of them without issue, to the survivors and survivor of them.” I take that to mean that if any one of the nephews and nieces named dies, his or her share is to go to the survivor unless he or she has issue. The question here is as to a share destined to a niece who died before the liferentrix. She had a child, but that child also died before the liferentrix. I think that share must go to the survivors; and in these circumstances the first alternative of the question should be answered in the negative, and the second alternative in the affirmative.

Lord Stormonth Darling—I agree with your Lordship in the chair. The ordinary rule is that a clause of survivorship such as you find here is referable to the date of distribution, which is fixed as the death of the liferentrix; and I think that the real meaning of this clause in the settlement,

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substituting issue for a parent, was simply to give expression by the testator to what would otherwise have been an implication of law under the conditio si sine liberis decesserit, for the issue could only take what had already vested in the parent.

Lord Low—I agree. It is to be observed that the only gift which is given to the nephews and nieces is contained in the direction to the trustees at the death of the lifereritrix to realise the subjects liferented, and divide the proceeds thereof among her nephews and nieces. That being so, I think it is plain that the survivorship clause applies to the period of division and payment and to no other. Now the only difficulty arises from the fact that the survivorship clause is expressed in this way—“Failing any of them without issue, to the survivors or survivor of them.’ The expression “without issue” can be construed either as “without ever having had issue” or “without leaving issue.” Which of these two constructions is to be adopted depends on the context. It seems to me that here it means “without leaving issue,” the time to which the words apply being the termination of the liferent and the period of division. If at that period a nephew or a niece has died without leaving any child then alive to represent him or her, his or her share passes to the survivors. Accordingly, Elizabeth and her child having both predeceased the liferentrix, nothing vested in either of them.

Lord Ardwall—I am of the same opinion. In the sixth purpose of the trust-disposition and deed of settlement of Mrs Duff there is no gift of the fee of the property at Blackness Terrace or the proceeds thereof till after the death of the liferentrix Miss Mary Garland, because the only words of gift are contained in a direction to the trustees after that event to sell and dispose of the said property, and to divide the free proceeds thereof among certain named beneficiaries. Accordingly until after the death of the liferentrix there was no gift made, and indeed there was no fund to divide, and therefore in my opinion it cannot be held that there was any vesting of the shares of that fund in any of the beneficiaries—see Bryson's Trustees v. Clarke, 8 R. 142. I think it is equally clear that the survivorship clause refers to the same period, namely, the death of the liferentrix—see Young v. Robertson, 4 Macq. 318. Now the survivorship clause comes to this, that the share of any of the nephews or nieces who predecease the liferentrix is to accresce to the survivors and the only event in which accretion is not to take place is the event of any nephew or niece leaving issue alive who should survive to take the share of the parent. Mrs Leighton had a child, but that child died before the liferentrix, and therefore no share fell to either mother or child; and the whole proceeds of the said subjects now fall to be divided in terms of the directions of the deed among the nephews and nieces of the truster who survived the liferentrix.

The Court answered the first alternative of the question of law in the negative, and the second in the affirmative.

Counsel:

Counsel for the First, Second, Fourth, Fifth, and Sixth Parties— Ingram. Agents— Galloway, Davidson, & Mann, S.S.C.

Counsel for the Third Party— D. Anderson. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
1908