Scottish Court of Session Decisions

A Special Case was presented by (1) George Inglis, S.S.C., Edinburgh, and others, testamentary trustees of the late James Ritchie, Dilston House, Upper Norwood, Surrey, who died on 10th July 1909 leaving a holograph will and two relative codicils, first parties; (2) Catherine Clephan Minto M'Donald, 108 Gilmore Place, Edinburgh, a cousin of the testator, to whom a bequest was made, second party; (3) Isabella Ritchie, 12 Eildon Street, Edinburgh, a sister of the testator and his heir ab intestato, third party; and (4) the University Court of the University of Edinburgh, the testator's residuary legatees, fourth parties, to settle the force and effect of the bequest to the second party which was contained in a codicil dated 10th September 1907.

The codicil, dated 10th September 1907, inter alia, provided—“I give and bequeath to my maternal cousins A. M. M'Donald, M.B., and Kate M'Donald the whole of my furniture and household and personal effects and one hundred pounds each—One hundred pounds each ( Initld.) J. R. I cancel and revoke the clause in my will naming the aforesaid cousins my residuary legatees, and I instruct my trustees to hold in trust the sum representing the remainder or balance of my estate after all the foregoing conditions are provided for, which sum will be augmented as the annuities fall in; and I give and bequeath to said cousins Dr A. M. and Kate M'Donald a life interest in this said residuary sum to enjoy, sharing equally the interest therefrom, payable six monthly, for the remainder of their lives. Upon the death of the last survivor I instruct my trustee to make over said residuary sum as far as it is then intact, but still providing for any annuitant in life by deed of settlement to the Principal or other responsible office-bearer of the Edinburgh University. The capital sum to be invested and the interest to be devoted to the promotion of physical and chemical research in conjunction with any scheme in progress or separately—subjects now receiving and deserving the highest attention in the development of scientific knowledge.”

The Case stated—“4. In consequence of the death of the said Dr Alexander Minto M'Donald a question has arisen as to whether Miss M'Donald, the party of the second part, as the survivor, is entitled to the whole free income of the residue during her life.

5. The first parties, in the event of neither the second or third parties being found entitled to the income of the said residue set free by the death of the said Dr Alexander Minto M'Donald, contend that they are bound to retain and accumulate the said income so set free in order to administer the same in accordance with the directions of the testator.

6. The second party contends that the bequest of liferent is a joint bequest in favour of the said Dr Alexander Minto

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M'Donald and Catherine Clephan Minto M'Donald, under which, on the death of the said Dr Alexander Minto M'Donald, the survivor the said Miss Catherine Clephan Minto M'Donald has right so long as she lives to the whole free income of the residue.

7. The third party contends that the bequest of liferent was not a joint bequest in favour of the beneficiaries, but that only one-half of the income from said residue was bequeathed to each of the said Dr Alexander Minto M'Donald and Catherine Clephan Minto M'Donald, and that upon the death of Dr Alexander Minto M'Donald the share of income thereby set free forms undisposed-of estate of the testator and passes to the third party as his heir ab intestato.

8. The fourth parties offer no contention on the question at issue between the parties of the second and third parts, but in the event of neither of these parties being found entitled to the share of income of the said residue set free by the death of the said Dr Alexander Minto M'Donald, the fourth parties claim that the said share of income falls to be paid to them as residuary legatees of the said James Ritchie.”

The questions of law were—“(1) Does the whole of the free income of the residue of the trust estate fall to be paid as from the date of the said Dr Alexander Minto M'Donald's death to the party of the second part? Or (2) Does one-half thereof fall to be paid to the party of the third part? Or (3) Does one-half fall to be paid to the parties of the fourth part? Or (4) Does one-half fall to be accumulated in the hands of the parties of the first part for the purposes of the trust until the death of the said Catherine Clephan Minto M'Donald?”

Argued for the second party—The result reached in Paxton's Trustees v. Cowie, &c., July 16, 1886, 13 R. 1191, 23 S.L.R. 830, did not here apply, because there was evidence in the settlement of the intention of accretion. The general rule was as stated by the Lord President in Paxton's Trustees v. Cowie, &c. ( supra), at 1197. There was no provision in the settlement for the death of one beneficiary, but only for the death of the last survivor, when the residue was to go to the University. There was no provision for the University getting the interest of the liferent before the death of the last survivor, and there was always a strong presumption against intestacy. In Stobie's Trustees, January 27, 1888, 15 R. 340, 25 S.L.R. 250, the terms of the settlement were different from the present. The present case was covered by authority— Tulloch v. Welsh, November 23, 1838, 1 D. 94; Barber, &c., v. Findlater, February 6, 1835, 13 S. 422, Lord Glenlee at 424; M'Laren on Wills, 3rd ed., vol. i, pp. 654, 631, 633.

Argued for the third party—There were here two separate bequests, and therefore no accretion; on the lapse of one bequest the amount fell into intestacy and did not go to residue. The general rule was that in bequests to individuals, if the words “share equally” appeared, there was no accretion— Paxton's Trustees v. Cowie, &c. ( supra), Lord President at 1197, approved in Cochrane's Trustees v. Cochrane, 1914 S.C. 403, 51 S.L.R. 382; Bartholomew's Trustees v. Bartholomew, January 28, 1904, 6 F. 322, Lord M'Laren at 324, 41 S.L.R. 259. These words did not appear in Tulloch v. Welsh ( supra). The rules applicable in the case of gifts to a class did not apply, because quoad the settlement the brother and sister were treated as individuals, and a separation of interests clearly intended— Menzies' Factor v. Menzies, November 25, 1898, 1 F. 128, Lord M'Laren at 131, 36 S.L.R. 116. Assuming there was no accretion the bequest must fall into intestacy, because the University's right only emerged on the death of the last survivor. Both branches of the argument were confirmed in Stobie's Trustees ( supra), Lord President at 342.

Argued for the fourth parties—The general rule was that subjects conveyed to trustees and not specially appropriated fell into residue. Here on the death of one beneficiary his share fell to the residuary legatees— Playfair's Trustees v. Hunter, &c., July 17, 1890, 17 R. 1241, 27 S.L.R. 991; M'Laren on Wills, 3rd ed., vol. i, p. 329. In England the same rule applied regarding personal property— Hodgson v. Earl of Bective, [1863] 1H. &M. 376; Countess of Bective v. Hodgson, &c., [1864] 10 H.L. C. 656; Wharton v. Masterman, [1895] AC 186; Jarman on Wills, 6th ed., vol. i, pp. 701, 941, 943, vol. ii, 1046.

Counsel for the first parties was not called upon.

At advising—