Scottish Court of Session Decisions

James Mellis, soapmaker, Prestonpans, died on 1st August 1899, leaving a trust-disposition and settlement whereby he conveyed his estate to certain trustees.

He directed his trustees to divide the residue of his estate into two equal parts, and pay and make over one of the said parts to his wife Mrs Mary Marr or Mellis absolutely as her own property; with regard to the other part of the said residue he provided that his wife should enjoy the liferent thereof and that on her death it should be dealt with as follows, viz.—“As regards one-third part or share, to pay the annual revenue and proceeds thereof to Georgina Gordon or Ritchie during her life, and on her death to divide the same equally among the children and grandchildren of the said Georgina Gordon or Ritchie per stirpes.”

The testator's widow died on 30th December 1902. Mrs Ritchie survived her and enjoyed the liferent provided for her in the will until her death on 10th November 1903. She was survived by two sons Thomas G. G. Ritchie and Robert F. A. Ritchie, and by four children of the said Robert F. A. Ritchie.

Questions having arisen with regard to the share falling to the said Robert F. A. Ritchie, a Special Case was presented to the Court, the first parties being the trustees, the second party Robert F. A. Ritchie, and the third parties Thomas C. Ritchie and others, the children of Robert F. A. Ritchie.

The second party maintained that the intention of the truster was only to call grandchildren to the succession where their parent was deceased. The third parties maintained that as children and grandchildren were generally called together per stirpes, the testator's intention was to give the children of each branch an equal share along with their parent.

The questions of law were, inter alia—“(1) Is the second party entitled to the said third share of half of the trust estate of the said James Mellis? or (2) Are the third parties entitled to share in said third part equally with their father, the second party?”

Argued for first and third parties—The grandchildren shared along with their parent. The peculiar ending of this settlement showed that grandchildren were institutes along with their parent, and not merely conditional institutes. The second party's contention required that “and” should be read as meaning “whom failing.” If that reading should be adopted the result would be that grandchildren would come in only in the event of the predecease of all the children. That could not have been intended. There should be equal division between the father and his children. Alternatively the father should get half of the fund, and the children the other half.

Argued for second party—The second party was entitled to the whole fund. The grandchildren only came in on the failure of their parent. The truster had tried to effect his meaning by a shorthand method,

Page: 480↓

but it was clear that the children were only conditional institutes. “And” here was equivalent to “whom failing”— M'Lauchlan's Trustees v. Harvey, November 26, 1908, 46 S.L.R. 156.