Scottish Court of Session Decisions

LORD CARMONT .—The question in this special case arises out of a provision in the will of the late Charles Thomas Cox, and in particular as to the disposal of the residue of his estate. Put in short language, he directed his trustees to divide the residue of his estate into certain parts, the various parts to be allocated among the descendants of his brothers and sister, and he qualified the gift to descendants by reference to those descendants who were "alive at the time of my death." The parties in this case who are in dispute as to the scope of that gift are those descendants who were truly alive at the time of the testator's death and those, four in number, who were in utero of their mothers at that date. The particular principle, which from a very early time has guided the Courts in this country in regard to the interpretation of such words of gift as these, has been favourable to including those children who were in utero in order to let them share in such gifts, and that is based upon the view that an equitable interpretation of such words used in such testamentary deeds should be given to them. From Roman times we find that the posthumous child has been given its place along with the other children, and that on the fiction that although not born at the time specified in the settlement the child should be deemed to have been so born. That fiction dating from the Roman law has been adopted into the law of Scotland and we find that Stair in his Institutions states in quite a brief way that "in all things tending in favour of those unborn, they are accounted as born," and similarly Bankton and the other institutional writers.

There are, however, two qualifications to the operation of this fiction, and one is that it should be, as Lord Stair expressed it, "in favour of those unborn." The language under construction must operate to the advantage of the child in utero at the crucial date, and not deal with a benefit which would accrue, let us say, to the child's father or mother. In the present case that condition of the operation of the doctrine undoubtedly exists because there can be no doubt that sharing in the benefit intended for the descendants of the brothers and sisters would confer an advantage or a benefit on all those who participate in the testator's bounty, and accordingly there would be a benefit to the children in utero, if brought within that class.

The second matter to be considered in regard to the application of the fiction is the language of the particular deed. The fiction is not one of universal application in this sense that it must not be applied irrespective of the actual language used by the testator. We have an instance of this in the case of Elliot v. Joicey, where the Court of Appeal in England was under the impression that it was bound to apply the doctrine in all cases where a posthumous child would benefit; but the House of Lords in that case put that matter beyond any doubt by pointing out that the Court of Appeal was not so bound, and the fiction was not applied when judgment was given by the House of Lords. Accordingly the second question that one must address to oneself in this special case is—Is there any express exclusion of the fiction or any exclusion of it by fair implications to be found in the terms of the testator's will? If one looks at the actual language used there is nothing to be seen that amounts to an express exclusion and nothing that indicates any intention that the testator meant that children in utero should be excluded. It is quite true that the testator more than once refers to "descendants alive at the time of my death," but the mere reiteration of that phrase in no way adds to the importance of the phrase, because it had to be used with reference to the separate parts that he was allocating among the descendants of his various brothers and of his sister, and he merely repeats the phrase with reference to the groups that he had in contemplation. The necessity for the original introduction of the fiction was to obtain an equitable interpretation of such words as "alive" when used by a testator, and I do not think anything can be taken against the application of the fiction in this case from mere repetition of the word "alive."

Various matters were touched on in argument as to the difficulties which would be experienced by the trustees in getting to know when to suspend division among the beneficiaries and as to the duration of such suspension. These are administrative rather than legal difficulties. Some other possible difficulties were mentioned which have no application to the present case as, for instance, how to determine whether a given posthumous child was in fact in utero at the actual date of a testator's death. As such matters do not require to be decided now, I leave them aside.

Taking the whole provisions of the settlement now before the Court, I see no ground for refusing in this case the application of the fiction. I accordingly advise your Lordships to answer the first branch in the negative and the second in the affirmative.

LORD RUSSELL .—I am of the same opinion and have nothing to add.

LORD KEITH .—I agree.

LORD PRESIDENT (Cooper).—I also agree.