Scottish Court of Session Decisions

George Porteous Scott, Glasgow, and others, testamentary trustees of James Brown Montgomerie-Fleming of Kelvinside, Glasgow,

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first parties; Mrs Elisabeth Tennent Montgomerie-Fleming or Carre and others, married daughters of the testator, along with the marriage-contract trustees of two of these daughters, their assignees, second parties; and Mrs Elisabeth Tennent Montgomerie-Fleming or Carre and others, testamentary trustees of Major James Brown Montgomerie-Fleming, son of J. B. Mont-gomerie-Fleming of Kelvinside, third parties, presented a Special Case for the opinion and judgment of the Court. Inter alia the question submitted to the Court was whether the late Major J. B. Montgomerie-Fleming died vested in a right of fee in the family house in terms of his father's will. James Brown Montgomerie-Fleming of Kelvinside, Glasgow, Major Montgomerie-Fleming's father, died on the 18th June 1899 leaving a trust-disposition and settlement dated 4th February 1898 which provided, inter alia—“ In the Fourth Place It is my wish and desire that on the death or second marriage of my said wife my children should so long as they remain unmarried live together at Beacons-field house Kelvinside And further as it is my wish and desire that my son James Brown Montgomerie-Fleming Junior should occupy Beaconsfield House on his marriage I hereby direct and appoint my said trustees on the death or second marriage of my said wife if and when the whole of my daughters are married or when my son is married whichever of these latter events shall first happen to assign and dispone to my son the said James Brown Montgomerie-Fleming Junior and his heirs and assignees (First) the said Beaconsfleld House offices ground garden and pertinents … (Second) the Gardener's Cottage ground attached thereto and kitchen garden and all presently attached to Beaconsfleld House but that under such burdens as may at the date of my death exist over the said subjects Declaring that as my unmarried daughters will on my son's marriage and entry to and occupation of Beaconsfleld House and pertinents before mentioned be deprived of a residence at Beaconsfleld I Provide and Declare that my son if and when my unmarried daughters are so deprived of a residence at Beaconsfield shall be bound and obliged as by acceptance of the foresaid conveyance in his favour of Beaconsfield House and others before mentioned he shall be held to bind and oblige himself to make payment to each of my unmarried daughters till each of them shall respectively be married of a free yearly annuity of Fifty pounds payable at two terms in the year Whitsunday and Martinmas by equal portions beginning the first term's payment of said annuity at the first of these terms which shall happen after my son's marriage and entry and occupation of Beaconsfield House and pertinents before mentioned for the period preceding the said term and the next term's payment at the first term of Whitsunday and Martinmas thereafter and so forth half-yearly and termly thereafter Declaring that if and when each of my daughters shall be married the annuity of the daughter so getting married shall cease as at the date of such marriage.” Beaconsfield House was subsequently known as Kelvinside House.

The Case stated, inter alia—6. The testator was survived by his widow the said Mrs Jane Robertson Pritchard or Montgomerie-Fleming (who accepted and was paid the liferent of testator's whole estate up to the date of her death), by his son, Major James Brown Montgomerie-Fleming, by his daughters Mrs Carre, Mrs Balfour Paul, and Mrs Neilson, the second parties hereto, and by another daughter, Miss Margaret Mary Montgomerie-Fleming. At testator's death all his children were unmarried. 7. The testator's widow, the said Mrs Jane Robertson Pritchard or Montgomerie-Fleming, died on 14th February 1913. The said Major James Brown Montgomerie-Fleming died of wounds on 18th August 1917 unmarried. At his death there was only one unmarried daughter, the said Miss Margaret Mary Montgomerie-Fleming, who died unmarried on 21st September 1921, being at the date of her death over twenty-one years of age. 8. It was decided in a Special Case taken to the Court ( Montgomerie-Fleming's Trustees v. Carre, July 4, 1913, 1913 S.C. 1018) that the testator, in expressing the desire in the fourth place of his said trust-disposition and settlement that his children so long as they remained unmarried should live together in said Kelvinside House, had given his children a mere right of occupancy and not a liferent of the house, and they were therefore not liable in payment of any annual burdens and charges thereon beyond those payable by a tenant-occupier. The right of occupancy of Kelvinside House under this decision was exercised by the said Major James Brown Montgomerie-Fleming and Miss Margaret Mary Mont gomerie-Fleming until the autumn of 1914, when they gave up said occupancy and intimated to the first parties that they preferred that the first parties should let the house and deal with the rent thereof as part of the general revenue of testator's estate. Thereafter Kelvinside House was let and is still let, the rent being treated as part of the general revenue of the trust estate. 9. By his trust-disposition and settlement and codicil, dated 16th September 1915, and registered in the Books of Council and Session 30th August 1917, the said Major James Brown Montgomerie-Fleming assigned and disponed to and in favour of the said Mrs Elisabeth Tennent Montgomerie-Fleming or Carre, Henry Carre, and Alfred James Fleming, as trustees for the purposes thereinafter mentioned, all and sundry the whole means and estate, heritable and moveable, real and personal, of every kind and description and wheresoever situated that should belong to him at the time of his death, including therein all means and estate over which he had powers of disposal, testing, or appointment by will or otherwise, together with the titles, writs, and vouchers of the same, and he nominated his said trustees to be his sole executors. 10. The said Miss Margaret Mary Montgomerie-Fleming died intestate, and by decree of the Sheriff of Edinburgh, the

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Lothians, and Peebles, dated 4th November 1921, her sisters the said Mrs Carre, Mrs Balfour Paul, and MrsNeilson were appointed her executrices-dative qua next-of-kin. 15. The second parties maintain that as the said Major James Brown Montgomerie-Fleming was at the date of his death unmarried, and his sister the said Miss Margaret Mary Montgomerie-Fleming was also then unmarried, he was not entitled to receive from testator's trustees during his lifetime a conveyance of Kelvinside House, and that he was not vested with any right of fee therein at the date of his death. They further maintain that Mrs Carre, Mrs Balfour Paul, and Mrs Neilson, being the whole surviving daughters of the testator, and all married, are, as heirs-portioners of the said Major James Brown Montgomerie-Fleming at the date of death of the said Miss Margaret Mary Montgomerie-Fleming, entitled, under the destination of Kelvinside House in testator's said bequest thereof, to a conveyance equally to them or their respective assignees, the above-mentioned marriage-contract trustees, of the said subjects to the extent of one-third each, subject to such burdens thereover as existed at the date of testator's death. Alternatively, they maintain that in the events which have happened said subjects form part of the residue of the testator's estate and fall to be dealt with under the fifth purpose of his said trust-disposition and settlement.… 16. The third parties maintain that on a sound construction of said trust-disposition and settlement the said Major James Brown Montgomerie-Fleming was vested with a right of fee in Kelvinside House subject to the right of occupancy of testator's unmarried children, and that they, as trustees of the said Major James Brown Montgomerie-Fleming, are now entitled to a conveyance of said subjects under the foresaid burdens.” [An alternative contention that the bequest had failed and fell to be regarded as intestate succession of the testator, and was therefore vested in Major Fleming as his heir-at-law, was subsequently given up.]

The questions of law were, inter alia—“1. Was the said Major James Brown Montgomerie-Fleming vested with a right of fee in the subjects now known as Kelvinside House at the date of his death, subject to such burdens as existed thereover at the date of the death of the testator? 2. In the event of the first question being answered in the negative—( a) Are the surviving sisters of the said Major James Brown Montgomerie-Fleming, the said Mrs Carre, Mrs Balfour Paul, and Mrs Neilson, or their respective assignees, second parties, as his heirs at the date of death of the said Miss Margaret Mary Montgomerie-Fleming, entitled as conditional institutes to a conveyance of said subjects subject to said burdens? or ( b) In the events which have happened do said subjects fall into and form part of the residue of testator's state?”

Argued for the second parties—No right of fee in the house had vested in Major Montgomerie-Fleming. This was plain on the terms of the clause apart from the destination-over, because the gift was purely conditional and the condition had never been purified— Bell v. Cheape, 1845, 7 D. 614; Bryson's Trustees v. Clark, 1880, 8 R. 142, and per Lord President Inglis at p. 145, 18 S.L.R. 103; Graham's Trustees v. Graham, 1899, 2 F. 232, 37 S.L R. 163; Baillie's Trustees v. Whiting, 1910 S.C. 891, and per Lord President Dunedin at p. 894, 47 S.L.R. 684. There was here, further, a conditional institution of the heirs and assignees of Major Montgomerie-Fleming, and in accordance with authority this gave a right to his surviving sisters to take as his heirs in preference to his testamentary assignees— Halliburton, &c., 1884, 11 R. 979, and per Lord President Inglis at p. 980, 21 S.L.R. 686; Cleland v. Allan, 1891, 18 R. 377, 28 S.L.R. 264; Macleod v. Wilson, 1903, 6 F. 213, and per Lord Young at p. 216, 41 S.L.R. 130; Wylie's Trustees v. Bruce, 1919 S.C. 211, and per Lord Justice-Clerk (Scott-Dickson) at p. 222, Lord Dundas at p. 223, and Lord Sands at p. 232, 56 S.L.R. 156. Marshall's Trustees v. Campbell, 1914 S.C. 443, 51 S.L.R. 397, founded on by the third parties, was inconsistent with Wylie's Trustees v. Bruce, cit. sup. The addition of the words “and assignees” to the destination did not strengthen the third parties' contention— Bell v. Cheape, cit. sup.

Argued for the third parties—Major Montgomerie-Fleming took a vested right of fee a morte testatoris in the house, burdened with a right of occupancy in his sisters, terminable in certain events. The use of the word “and” in the destination instead of the word “or” his heirs showed that this was the true construction. The word “or” had been interpreted as equivalent to “whom failing,” and therefore as unfavourable to vesting. The word “and” on the other hand was cumulative in its effect and emphatic of the gift, and therefore favourable to vesting— Findlay v. Mackenzie, 1875, 2 R. 909, 12 S.L.R. 597; Bowman v. Bowman, 1899, 1 F. (H.L.) 69, 37 S.L.R. 959; Thompson's Trustees v. Jamieson, 1900, 2 F. 470, 37 S.L.R. 346; Marshall's Trustees v. Campbell, 1914 S.C. 443, 51 S.L.R. 397; Wylie's Trustee's v. Bruce, 1919 S.C. 211, 56 S.L.R. 156. The presumption in favour of vesting was unusually strong where children were favoured and the object in postponing payment was accounted for as in the present case. To overcome this presumption the ulterior destination must be such as to indicate specific favour on the part of the testator— Jackson v. Macmillan, 1876, 3 R. 627, per Lord Justice-Clerk Moncrieff at p. 630, 18 S.L.R. 388. Graham's Trustees v. Graham, cit. sup., was not in point, because neither the word “and” nor the word “or” was there subject to construction. Wylie's Trustees v. Bruce, cit. sup., did not disapprove of Marshall's Trustees v. Campbell, cit. Sup. The addition of the words “and assignees” strengthened the presumption in favour of vesting— Thompson's Trustees v. Jamieson, cit. sup., per Lord Stormonth Darling at p. 493 and Lord Low at p. 495. In this respect Bowman v. Bowman, cit. sup., and Wylie's Trustees v. Bruce, cit. sup., were distinguishable. Bell v. Cheape, cit. sup., did not

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decide any question of vesting. The question there raised was whether the destination let in assignees before vesting. Home's Trustees, 1891, 18 R. 1138, was also referred to.

At advising—