Scottish Court of Session Decisions

Mrs Christina Stephen or Thomson died in 1882 leaving a trust-disposition and settlement, dated 6th April 1878, by which she conveyed her whole estate, heritable and moveable, to trustees.

The sixth purpose of the settlement was—“( Sixth) I direct my said trustees at the first term of Whitsunday or Martinmas happening three months after my death, to invest the sum of £2500 for behoof of my said niece Christina Black, and that either on heritable or personal security, or on debenture stock of any company; and they shall pay over to her half-yearly during all the days of her life (if she shall survive me) for her liferent use allenarly the free proceeds or income arising from the said sum of £2500 so invested after deducting all necessary expenses; … And I further direct my said trustees to pay over on the death of the said Christina Black the said principal sum of £2500 to any child or children of the said Christina Black equally among them on their attaining majority:. . but declaring that this bequest shall not vest in such child or children till they reach majority; and failing such child or children, or failing their reaching majority, I direct my said trustees to realise and pay over the said sum of £2500 as follows, viz.:—To my said nephew George Black the sum of £1000, to my said niece Jane Black the sum of £750, and to my said nephew Charles Boswell Black the sum of £750: Declaring that if the succescession thereto shall open to my said nephews and niece the sums falling to them shall be held to have vested in them at the time of my death: And declaring also that if the said Christina Black shall predecease me, the said sum of £2500 shall form part of the residue of my means and estate…”

Christina Black, the liferentrix, having died without issue in 1905, and Jane Black, otherwise Mrs Allan, having though alive at the date of the settlement predeceased the testatrix, but being represented by an only child, Stephen Strachan Allan, a question arose as to the right to the £750 conditionally destined to Mrs Allan. To have this question decided Donald Stewart Campbell, solicitor, Montrose, the sole surviving trustee of Mrs Thomson, raised, in June 1906, an action of multiplepoinding, the fund in medio being £694, 3s. 4d., representing the £750. Claims were lodged by (1) James Macaulay and Donald Campbell, trustees of the deceased John Thomson and others, the residuary legatees, and (2) Stephen Strachan Allan, who, founding upon the conditio si institutus sine liberis decesserit, claimed the whole fund, but alternatively claimed a share as a residuuary legatee. Christina Black, George Black, Jane Black or Allan, and Charles Boswell Black were the whole of the testatrix's nephews and nieces of that family.

The other provisions of the trust-disposition and settlement, so far as necessary, and the circumstances under which the case arose, are given in the opinion ( infra) of the Lord Ordinary ( Johnston), who on 8th February 1907 repelled the first alternative claim for the claimant Stephen Strachan Allan; ranked and preferred the said claimant on the fund in medio in terms of his second alternative claim; and also ranked and preferred the claimants James Macaulay and others, on the fund in medio in terms of their claim.

Opinion.—“Under her will Mrs Thomson, who was a widow without children of her own, but who had three sets of nephews and nieces, the children of her brother and two sisters, made three different provisions in which they were interested. Owing to the predecease of one of her nieces, Jane Black or Allan, questions under the conditio si sine liberis have been raised with regard to all three of these provisions. Two of these were disposed of in the case of Allan v. Thomson's Trustees, 1893, 20 R. 733, 30 S.L.R. 654; the third has now to be determined.

The circumstances are that Mrs Thomson's settlement is dated in 1878. Her niece, Jane Black or Allan, died in 1879. Mrs Thomson died in 1882, and Christina Black, the liferentrix of the sum now in question, survived till 1905, at which date Jane Black or Allan, who was alive at the date of the settlement, but predeceased the testatrix, was represented by her only child, Stephen Strachan Allan, who claims as in her right under the conditio si sine.

Before considering the particular provision of Mrs Thomson's settlement under which the present question arises, it is necessary to refer to the provisions which have already been sub judice. Under the fourth head Mrs Thomson directed her trustees to make payment of a considerable number of legacies, both of specific articles and of varying sums of money. Her whole nephews and nieces are included among the legatees, but there were a considerable number of other legatees who were not relatives. The whole of these legacies bore expressly to be “all as mementos of me.” The Court in the case above cited determined that the present claimant could not take his mother's legacy under the conditio si sine, as it could not be considered as part of a family provision, such as a father would make for his children or an aunt for her nephews and nieces.

Under the eighth purpose Mrs Thomson directed the free residue to be divided equally among her brother-in-law, John Sharp Thomson, and her whole nephews and nieces nominatim, including Mrs Jane Black or Allan. Here notwithstanding the introduction of a brother-in-law to share equally with the nephews and nieces, the Court in the same case held that the conditio si sine did apply, and that the present claimant therefore took his mother's share, as the provision was sufficiently of the nature of a family provision.

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But in the sixth purpose of the settlement Mrs Thomson provided that a sum of £2500 should be set apart and invested for behoof of her most favoured niece and namesake Christina Black, a sister of Jane Black or Allan, for her liferent use allenarly, and on her death directed the principal to be paid over equally to her child or children, if any, at majority, under the declaration that the bequest should not vest in them till they reached majority. Failing such child or children, or failing their reaching majority, Mrs Thomson directed the trustees to pay over the said sum of £2500 thus—to her nephew George Black, £1000; to her niece Jane Black, £750; and to her nephew Charles Boswell Black, £750, under the declaration that should the succession open to her said nephews and niece the sums falling to them should be held to have vested in them at the time of her death. I should add that they, with their sister Christina, the liferentrix, formed the whole Black family. Now had this been the sole provision for the Black family there would have been a good deal to say in favour of the application of the conditio si sine, but I am unable to give the claimant Stephen Strachan Allan, Mrs Jane Black or Allan's son, the benefit of that conditio with reference to the bequest where there is in the same deed another provision, viz., the residue clause, much more in the nature of a family provision, under which by virtue of the conditio he has already been held entitled to take his mother's share.

If, however, I had had any difficulty on the point it would have been entirely removed by the final declaration of the sixth purpose, viz., “that if the said Christina Black shall predecease me the said sum of £2500 shall form part of the residue of my means and estate.” In view of this declaration it is quite impossible to hold that the destination-over to the three members of the Black family is in any sense a family provision to which the conditio applies. I find, therefore, that the share of the £2500 resultingly bequeathed to Jane Black or Allan has lapsed by the predecease of the testatrix, and I must therefore repel the first branch of the claim for Stephen Strachan Allan.

But there remains a question which has not yet been argued, and which from the form of the claims it may not be intended to raise, whether Mrs Jane Black or Allan's share of the £2500 falls into residue or into intestacy. Before disposing of the case I should wish to be informed whether the question is to be raised, and if so to hear further argument.

“ Note.—I understand that parties do not wish to raise this question, and accordingly I pronounced a final interlocutor in the competition.”

The claimant Stephen Strachan Allan reclaimed, and argued—The £750 did not fall back into residue, but was carried by the conditio si institutus sine liberis decesserit to the reclaimer. The result of the prior case Allan v. Thomson's Trustees, May 30, 1893, 20 R. 733, 30 S.L.R. 654, was to decide that the settlement viewed as a whole was a family settlement, and that the testatrix had placed herself in loco parentis to her nephews and nieces. There was accordingly a presumption that the sixth purpose which provided for a whole family was a family provision. [ Lord Low—But it was only in the event of the liferentrix having no children that the three other members of the Black family were provided for under the sixth purpose.] It was true that they were only conditional institutes, and in Carter's Trustees v. Carter, January 29, 1892, 19 R. 408, 29 S.L.R. 347, a doubt was expressed as to whether the conditio could be implied in favour of the children of a conditional institute, but it was there stated in argument that the conditio had never been held to apply in such a case, and no case was cited by the other side, whereas it had been applied in Rougheads v. Rannie, February 14, 1794, M. 6403; Grant's Trustees v. Grant, 1862, 24 D. 1211; Taylor v. Taylor, January 22, 1884, 11 R. 423, 21 S.L.R. 298. Nor was the operation of the conditio excluded by the fact that the conditional institutes were called nominatim or that the sums were of different amounts— Bryce's Trustees, March 2, 1878, 5 R. 722, 15 S.L.R. 412. There were no such words in the sixth purpose indicating a delectus personœ corresponding to “as mementos of me” in the fourth purpose, to exclude the operation of the conditio, and there was no reason why it should apply more in the residuary clause than here. That all the three sets of nephews and nieces were not mentioned in the sixth purpose did not matter, seeing that they were all provided for elsewhere in the deed— MacGown's Trustees v. Robertson, December 17, 1869, 8 Macph. 356, 7 S.L.R. 197; Bogie's Trustees v. Christie, January 26, 1882, 9 R. 453, 19 S.L.R. 363. Where a testatrix had expressed one definite circumstance on the occurrence of which a fund should fall into residue, there was a strong presumption that in no other case was it to do so.

Argued for the respondents James Macaulay and others—Where legacies were not of a family nature, but were gifts out of favour, the conditio did not apply— Allan v. Thomson's Trustees ( cit. sup.), at p. 736; Waddell's Trustees v. Waddell, December 2, 1896, 24 R. 189, 34 S.L.R. 142; Douglas's Executors, February 5, 1869, 7 Macph. 504, 6 S.L.R. 324. These cases also showed that the fact that the conditional institutes to the £2500 were already provided for under the residue clause created a presumption that other gifts in the deed to them were of a personal nature involving delectus personœ. The fact that the reclaimer's mother was only a conditional institute was an indication that the sixth purpose was not a family provision— Carter's Trustees v. Carter ( cit. sup.)—as was also the fact that the gift depended on the liferentrix surviving the testatrix. In Rougheads v. Rannie, Grant's Trustees v. Grant, and Taylor v. Taylor ( cit. sup.), the alternative to the operation of the conditio was intestacy.

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