Scottish Court of Session Decisions

On 18th January 1909 Mrs Josephine Grote Stockwell or Cordiner, widow of the late Rev. Robert Charles Cordiner, and his

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executrix and universal legatory under a will dated 18th April 1893, brought an action against (1) Alexander Duffus, judicial factor on the trust estate of the late William Fraser Cordiner of Cortes in Aberdeenshire; (2) Robert Grote Cordiner and Hugo Grote Cordiner, the children of the pursuer and the said Rev. Robert Charles Cordiner, and the pursuer as their guardian, they being in pupillarity; and (3) Robert Gray, curator bonis to Mrs Margaret Farquharson Bus—field or Cordiner, widow of the said deceased William Fraser Cordiner, in which she sought declarator that “under and in terms of the trust-disposition and settlement and relative codicils of the said William Fraser Cordiner, the pursuer's husband … by his survivance of the said William Fraser Cordiner acquired a vested right in the fee of the residue of the whole estate … of the said William Fraser Cordiner, and that the pursuer, as her said husband's executrix and universal legatory, is now in right of the said fee of the residue of the said estate.”

William Fraser Cordiner died on 15th January 1907 without issue, leaving a trust-disposition and settlement dated 23rd February 1871 and relative codicils, the terms of which so far as necessary are quoted supra in rubric. His widow was alive at the date of this action.

Robert Charles Cordiner survived the truster but died on 28th August 1907, survived by the pursuer, his widow Mrs Josephine Grote Stockwell or Cordiner, and by the two pupil children, Robert Grote Cordiner and Hugo Grote Cordiner, to whom Mr John W. More, advocate, was appointed tutor ad litem by the Court.

Robert Charles Cordiner left a settlement dated 18th April 1893, bequeathing all his real and personal estate and effects whatsoever and wheresoever, or to which he should at his death be seised, possessed, or entitled, or over which he should have a general power of appointment or disposition by will, to his wife absolutely, and he appointed her his executrix.

The pursuer pleaded—“On a sound construction of the trust-disposition and settlement and codicils of the said William Fraser Cordiner, the fee of the residue of his estate vested a morte testatoris in the pursuer's husband Robert Charles Cordiner, and has now passed to the pursuer as her husband's universal legatory.”

The tutor ad litem to the pupil children pleaded—“(1) The vesting of the fee of the residue of the trust estate of the said William Fraser Cordiner being postponed to the death of the liferentrix, the defenders should be assoilzied. (2) The said Rev. Robert Charles Cordiner having at the date of his death no vested right in the fee of the said residue, the defenders should be assoilzied.”

The judicial factor on the truster's estate and the curator bonis to the testator's widow, who had been called as defenders, were represented at the hearing.

On 17th July 1909 the Lord Ordinary ( Guthrie) assoilzied the defenders.

Opinion.—“The question of vesting raised in this case depends on the construction of the tenth clause of the late William Fraser Cordiner's trust-disposition and settlement, dated 23rd February 1871, taken along with his formally executed codicil, dated 9th October 1890. I think it follows from the opinions of Lord Watson and Lord Davey in the case of Bowman, 1 F. (H.L.) 69, as these have been applied in subsequent cases, that if consideration is confined to the testator's trust-disposition vesting must be held postponed till the period of distribution, namely, the death of Mrs W. F. Cordiner, who is still alive. In that case the claim for the pursuer, the widow and universal legatory of the late Rev. Robert Charles Cordiner, the testator's nephew, who survived the testator but not the liferentrix, would necessarily fall to be repelled. I read the word ‘or’ in the bequest to Robert (that is, Robert Charles) Cordiner, son of my late brother Robert, ‘or to his heir-at-law’ as equivalent to ‘whom failing.’ But it is said that the codicil of 9th October 1890 either shows that the testator did not mean when he executed his trust-disposition to postpone vesting beyond the date of his death, or that he subsequently resolved to change the period of vesting from the period of distribution at the death of the liferentrix to the date of his own death. The codicil shows that this is a possible view of the testator's intention, but I cannot hold it over-rides the legal meaning of his trust-disposition unless it makes the inference reasonably necessary. I do not think it has this effect. At the date of the codicil Robert Charles Cordiner was unmarried, and the testator may have had in view the contingency of his nephew dying before him without leaving children, and he provided that in that event the estate of Cortes should go to the testator's wife. He expressly says that it was that contingency which he was providing for. It does not seem to me a reasonably inevitable inference that he considered at all the other more remote contingency which has actually happened, namely, of his nephew surviving him and predeceasing the liferentrix; or that, if he did consider it, he would not intend that in that case, when in ordinary course the nephew might have married and had children, his children should not take in their own right on their father's predecease of the liferentrix. The purpose of the codicil was to secure that his own heir-at-law, who happened at the time to be also the nephew's heir-at-law, should not take the property for the reason assigned by him. It does not follow that at the later period when it might be presumed that the nephew's heir-at-law would be his child he would desire the property to go either to the nephew or to his own widow.…”

The pursuer reclaimed, and argued—The tenth purpose of the trust-disposition and settlement must be read in the light of the codicil of 9th October 1890. A destination-over to the heir-at-law no doubt imported a conditional institution, and vesting was postponed where the destination-over

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referred to interest the period of distribution, but not if the destination-over referred to the truster's death. The terms of the codicil showed that the period of vesting contemplated by the truster was the date of his own death. The rule laid down in Bowman v. Bowman, 1899, 1 F. (H.L.) 69, 36 S.L.R. 959, was a presumption and must yield to an expression of the testator's intention. It was not advisable to have two periods of vesting applicable to different portions of the estate. Where there were two possible views as to date of vesting, that construction was to be preferred which resulted in immediate vesting a morte testatoris— Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142, 18 S.L.R. 103; Bowman v. Bowman's Trustees, cit. sup.; Webster's Trustees v. Neil, March 2, 1900, 2 F. 695, 37 S.L.R. 493.

The respondent (the tutor ad litem for the pupil children) argued—The tenth purpose of the trust-disposition and settlement provided a destination-over referable to the period of death of the liferentrix. The intention of the testator was explicit. The purpose of the codicil was to provide for one case and referred to the interest of one particular person. The codicil could not override the express terms of the tenth clause.

Counsel for the tutor ad litem stated that in this action it was sufficient to give effect to his second plea-in-law.

At advising—