Scottish Court of Session Decisions

A Special Case was presented for the opinion and judgment of the Court by Joseph Young, physician, Slamannan, and others, the trustees acting under the last will and testament of the late John Chisholm Robertson of Slamannan, first parties; Robert Horne, Jessie Horne, and Mrs Mary Horne or Lloyd, Alberta, Canada, second parties; and Margaret Forrester and others, the children of and residing with James H. Forrester, Stenhousemuir, third parties.

The Case stated—“1. The late John Chisholm Robertson, a domiciled Scotsman, hereinafter referred to as the testator, died at Singapore on 19th June 1917 leaving a last will and testament dated 16th January 1917. … 2. By the said last will and testament the testator gave and bequeathed all his estate and effects to his trustees upon trust that they should convert the same into money or such part thereof as should not consist of money, and after payment thereout of his funeral and testamentary expenses, debts, and duties, he directed his trustees to ‘divide the same in the following manner, namely—One seventh part thereof to be paid to my sister Mary Moore, widow; one seventh part thereof to be divided equally between Robert Horne, Jessie Horne, Mary the wife of Mr Lloyd (the children of my deceased sister Margaret Horne) and the children of Lucinda Forrester, the deceased daughter of the said Margaret Horne, on their attaining the age of twenty-one years; one seventh part thereof to the children of my deceased sister Lucinda Dalrymple in equal shares on their attaining the respective ages of twenty-one years; one seventh part thereof to my sister Jeannie Gillespie, the wife of William Gillespie; one seventh part thereof to my sister Annie Robertson; one seventh part thereof to my sister Jessie Roden, wife of James Roden; and as to the remaining one seventh part thereof equally between my brother Robert Robertson, his wife Agnes, and his daughter Moira.’ 3. The testator died survived by a widow, Agnes Robertson, who accepted one-eighth of the residue of the trust estate in full settlement of her legal rights in the testator's estate. … 4. The said Robert Horne, Jessie Horne, and Mary Horne or Lloyd, wife of Lloyd, all survived the testator. They have all attained majority and are the second parties hereto. The said deceased Lucinda Forrester was the wife of James Honeyman Forrester, and left the following seven children, who all survived the testator, viz., Margaret Forrester and Janet Forrester, who have both attained majority, William Forrester, Jessie Eccles Horne Forrester, and Euphemia Forrester, who are all in minority, and James Horne Forrester and Alexander Honeyman Forrester, who are in pupilarity. These children are the third parties hereto. The said James Honeyman Forrester is the guardian-at-law of the said children, who are in minority and pupilarity. 5. A question has arisen with regard to the true effect of the bequest of the share of the trust estate destined to the second and third parties under the above-recited clause of the said last will and testament. The first parties are desirous of distributing the estate in accordance with the determination of the Court on the questions raised by the other parties, and submit no contentions.”

The second parties manitained that on a sound construction of the said last will and testament they were entitled equally among them to three-quarters of the said one-seventh share of residue, and that the third parties were only entitled to the remaining one-quarter equally among them.

The third parties maintained that the share of the estate therein directed to be divided between them and the second parties fell to be divided among them per capita, and that accordingly each of the third parties having acquired a vested interest at the death of the testator in one-tenth portion of the said share, they were or would become upon attaining majority entitled to payment thereof from the first parties.

The questions of law were—“(1) Is the said share of the trust estate divisible into four equal parts, of which the second parties are entitled to three parts equally among them, and the third parties to the remaining one part equally among them? or (2) Is the said share divisible into ten equal shares, of which each of the second and third parties take one?

Argued for the second parties—The legal presumption in favour of division per capita might be readily displaced by evidence of a different intention. Here there was such evidence. The general character of the will was stirpital, and it was clear from the terms used that the testator intended this division to be per stirpes, the children of Mrs Forrester being called in place of their mother— Galloway's Trustees v. Galloway, 25 R. 28, 35 S.L.R. 23; Laing's Trustees v. Sanson, 7 R. 244, 17 S.L.R. 128; Inglis v. M'Neils, 19 R. 924, 29 S.L.R. 795; Campbell's Trustee v. Dick, 1915 S.C. 100, 52 S.L.R. 78.

Argued for the third parties—There were no words in the deed which favoured one construction more than the other. This being the case, the legal presumption in favour of distribution per capita should be given effect to—M'Laren on Wills, 3rd ed. p. 780; Candlish Henderson on “Vesting, p 191; M'Courtie v. Blackie's Children (1812), Hume's Decs. 270; MacDougall v. MacDougall, 1866, 4 Macph. 372; Bogie's Trustees v. Christie, 9 R. 453, 19 S.L.R. 363; Benny v. Crosbie, 1822, 2 S. 60.

At advising—