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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> (Cunningham's Trustees) v. Blackwell and Others [1908] ScotLR 175 (28 November 1908)
URL: http://www.bailii.org/scot/cases/ScotCS/1908/46SLR0175.html
Cite as: [1908] SLR 175, [1908] ScotLR 175
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SCOTTISH_SLR_Court_of_Session
Page: 175↓
Court of Session Inner House First Division.
v.
Facts:
A testator directed his trustees that on the death of his widow, to whom he had given a liferent, “all of which I am possessed be divided equally among my cousins the Blackwells (leaving out Mrs Buckle), and among the children of my uncle James Hay.”
Held (1) that the fee of the residue vested a morte testatoris, (2) that the residue fell to be divided among the Blackwell family and the Hay family per capita, (3) that a member of the play family born after the testator's death was entitled to a share.
By holograph last will or testament, dated 6th April 1841, and registered in the Books of Council and Session 30th September 1842, Robert James Hay Cunningham, hereinafter referred to as the “testator,” conveyed to the trustees and executors therein mentioned his whole property, real and personal. The said will was in the form of a letter to his agents, and was as follows:—“Trafalgar Hotel, London, April 6th, 1841—To Messrs Tod & Romanes, Great Stuart Street, Edinburgh, who are hereby appointed my trustees and executors.—Gentlemen,—I hereby dispone and convey to you my whole property, real and personal, and the vouchers thereof, with directions to fulfil the obligations in my contract of marriage to my wife, and thereafter to pay and apply the free proceeds as follows:—£100 sterling to James Turner, schoolmaster, West Barns, Dunbar; £200 to my servant John Gibson Campbell; my collection of Latin and Greek Classics to James Turner, schoolmaster, West Barns, Dunbar; my geological and mineralogical collection to the Edinburgh Museum; £100 to my cousin Robert Blackwell; all furniture, pictures, plate, jewels, I bequeath to my wife, with also the liferent of all monies belonging to me after the above-mentioned legacies are paid off; on the event, however, of her either entering into a second marriage or not residing permanently in Scotland, she is not to be entitled to the interest of any money belonging to me; upon her decease, or second marriage, or non residence in Scotland, I desire that all of which I am possessed be divided equally among my cousins the Blackwells (leaving out Mrs Buckle) and among the children of my uncle James Hay, Esq. of Belton.…”
The testator died on the 15th of May 1842, and the trustees nominated by his said last will or testament entered into possession of his whole means and estate. The trustees duly implemented the prior purposes of the trust imposed upon them, and held the residue for the liferent use of the testator's
Page: 176↓
widow, hereinafter referred to as the liferentrix, in terms of the said last will or testament. The liferentrix survived the testator, and continued to enjoy the liferent of the residue of the testator's estate until her death on 23rd November 1907. She remained his widow, and continued to reside in Scotland till her death. In consequence of the death of the liferentrix the residue of the testator's estate amounting to about £16,000 became available for division in terms of the directions in his said last will or testament before narrated. The testator was survived by two families of first cousins, viz. (1) the children of Mrs Richard Hay or Blackwell, a sister of his mother, six in number (including Mrs Buckle), and (2) the children of Admiral James Hay of Belton, a brother of his mother, ten in number.
Questions having arisen between the parties as to the construction and effect of the direction for the disposal of residue, a Special Case was presented.
The first parties to the case were the trustees acting under the will.
The second parties were the representatives of the five members of the family of Mrs Blackwell (designed in the said last will or testamentas “my cousins the Blackwells (leaving out Mrs Buckle),” and here in after referred to as the Blackwell family) who survived the testator, but all of whom predeceased the liferentrix. The third parties were the members or representatives of members of the family (hereinafter referred to as theHay family) of the late Admiral Hay of Belton (designed in the said last will or testament as “James Hay, Esquire of Belton”) who were born in the lifetime of the testator, and who survived both the testator and the liferentrix. The fourth parties were the representatives of members of the Hay family who survived the testator but predeceased the liferentrix. The fifth party was the youngest member of the Hay family, and was the only one of that family who was born after the death of the testator.
The first parties, as trustees foresaid, offered no contention as to the meaning and effect of the testator's directions with regard to the disposal of the residue of his estate, and were willing to distribute the said residue in accordance with the findings of the Court in the case.
The second parties contended that upon a sound construction of the said last will or testament the residue vested a morte testatoris in the members of the Blackwell family and the Hay family then alive, subject to the widow's liferent thereof and not subject to defeasance pro tanto in favour of any members of the Hay family born after that date, and that the division should be per stirpes and not per capita as between the two families.
The third parties contended that vesting was postponed till the death of the liferentrix, and that the residue fell to be divided per capita among the members of the Hay family who were born during the testator's life and survived the death of the liferentrix.
The fourth parties-contended that the fee of the residue vested a morte testatoris in the residuary legatees, and that the division fell to be made per capita and not per stirpes.
The fifth party contended that vesting was postponed till the death of the liferentrix; that the division ought to be per capita; and that in any event she was entitled to share in the said residue equally with the other members of the Hay family.
The questions of law were as follows—“(1) Did the fee of the residue of the testator's estate vest in the parties entitled thereto—( a) a morte testatoris, or ( b) at the death of the liferentrix? (2) In the event of its being held that vesting took place a morte testatoris, does the said residue fall to be divided among the Blackwell family and the Hay family—( a) per stirpes, or ( b) per capita? (3) Is the fifth party, though born after the testator's death, entitled to a share of the residue as a member of the Hay family?”
The second parties argued—(1) As regards the first question, there was nothing here to suspend vesting; (2) the division should be per stirpes— Searcy's Trustees v. Allbuary, 1907 S.C. 823, 44 S.L.R. 536; Inglis v. M'Neils, June 23, 1892, 19 R. 924, 29 S.L.R. 795 ( sub nomine Hamilton v. Inglis); (3) on the third point they offered no argument.
The fourth parties argued—(1) There was nothing here to suspend vesting. (2) The general rule was that division was per capita, unless there was something to indicate the contrary— Laing's Trustees v. Sanson, November 18, 1879, 7 R. 244, at 245, 17 S.L.R. 128; Bogie's Trustees v. Christie, January 26, 1882, 9 R. 453, 19 S.L.R. 363; Macdougall v. Macdougall and Others, February 6, 1866, 4 Macph, 372, 1 S.L.R. 143. In Inglis v. M'Neils (cit. sup.), where the division was per stirpes, there was the repetition of the word equally.
The third parties argued—(1) Vesting was postponed. There was no gift to the cousins till the death of the widow, and no direction to pay— M'Alpine and Others v. Studholme, March 20, 1883, 10 R. 837, Lord President at 844, 20 S.L.R. 551; Scott's Trustees v. Dunbar, January 26, 1900, 2 F. 516, at 519, 37 S.L.R. 375; Ross's Trustees v. Ross, May 29, 1902, 4 F. 840, Lord Trayner at 844, 39 S.L.R. 678. (2) The division was per capita. On this question they adopted the argument of the fourth parties. In Searcy's Trustees ( cit. sup.) the word “family” was used as the unit, and there were double words of distribution.
The fifth party argued—(1) On the first question she adopted the argument of the third parties, and (2) on the second question that of the fourth parties. (3) In support of her contention on the third question she referred to Carleton v. Thomson, July 30, 1867, 5 Macph. (H.L.) 151, 4 S.L.R. 226; Hickling's Trustees v. Garland's Trustees, August 1, 1898, 1 F. (H.L.) 7, Lord Davey at p. 19, 35 S.L.R. 975.
Page: 177↓
At advising—
Now the first question that is put to your Lordships is whether the money vested a morte testatoris or upon the death of the liferentrix. I do not think that that question can admit of the slightest doubt. There is simply nothing here to prevent the vesting, and according to the ordinary rule, where there is no reason to prevent vesting, the vesting takes place a morte testatoris. Accordingly the persons who became entitled a morte testatoris were the persons described in the clause that I have read.
The next question, however, that arises is whether the division is to be per capita among the persons named or per stirpes. The expression is, “to be divided equally among my cousins the Blackwells (leaving out Mrs Buckle), and among the children of my uncle James Hay, Esquire, of Belton.” Now of course a question of this sort always depends upon the words of the will, and anything that may be gathered from any part of the will as to intention. Here there is nothing to be gathered from any part of the will, and there is no suggestion why the testator should prefer one cousin to another. The word “among” in its natural sense means of course a division among a plurality, that is, in a case like this a division per capita. It is quite true there may be circumstances which may change the signification of the word “among,” and which we have had to examine in two quite recent cases— Searcy's Trustees (1907 S.C. 823) and Inglis v. M'Neil (1892, 19 R. 924). In both these cases there were words used by the testator which suggested that there was to be a double operation of division—first, the operation of division among the families, and then the operation of division among the members of the families. That being so, it was held that these words could not be given effect to unless you had, first, a per stirpes division, and then a division among the family itself. Now I do not think that here the repetition of the word “among” will, so to speak, bear the weight of altering the ordinary rule; and in point of fact, so far as instruction can be got in one case from another, the law is laid down in the early case of M'Kenzie v. Holte, in 1781, M. 6602, where the expression was “equally among the children of Janet M'Kenzie and the children of Anne M ‘Kenzie and the children of Anne Munro.” It was argued there that the repetition of the conjunction “and” showed that there was to be a per stirpes division, but that argument was not given effect to, and the Court held that the general rule must hold and the division be per capita. I think that the repetition of “among” here does not really make any difference, and accordingly I am of opinion that the division must be per capita.
The only other question is whether a certain party, one of the Hays, who is a post natus—born after the testator's death—comes in. I think it is settled that when a family are described as a class, as here, “the children of my uncle James Hay,” that means that the whole family are called, and that as any child is born it comes in for its share.
Accordingly I propose that we should answer the first alternative of the first question in the affirmative, and the second alternative of the second question in the affirmative, and the third question affirmatively.
There is perhaps some delicacy with regard to the second question. As your Lordship observed, in a case of this kind a great deal depends upon the exact phraseology of the will. It will be remembered that the testator expressed the desire that upon the termination of his widow's liferent, all of which he was possessed should be divided equally among his cousins the Blackwells, and among the children of his uncle Mr Hay. Prima facie I should understand this direction as meaning that every member of both families should take an equal share of the testator's whole estate. This impression is confirmed by the fact that the beneficiaries were all equally nearly related to him, and that no good reason appears why he should have desired to give one-half of his estate (say) to a single Hay cousin if it so happened that only one of that family survived him. The opinion at which I have arrived upon a construction of the language of the will is confirmed by the authorities. I refer in particular to the general statement of the law by Lord M'Laren in Allen v. Flint, 1886, 13 R. 975, at p. 977. As I can find nothing in this will which indicates an intention contrary to what I have described as the prima facie construction, I am of opinion with your Lordship that the division should be per capita.
Page: 178↓
The Court answered the first alternative of the first question in the affirmative, the second alternative of the second question in the affirmative, and the third question in the affirmative.
Counsel for the First Parties— James Adam. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for the Second Parties— Macfarlane, K.C.— Grainger Stewart. Agents— J. & F. Adam, W.S.
Counsel for the Third Parties— Macphail— C. H. Brown. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for the Fourth Parties—Hon. Wm. Watson. Agents— Blair & Caddell, W.S.
Counsel for the Fifth Parties— A. P. Carnegie. Agents— Rutherfurd & Don Wauchope, W.S.