BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barber v Findlater [1835] CA 13_422 (6 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0422.html Cite as: [1835] CA 13_422 |
||
[New search] [Help]
Page: 422↓
Subject_Testament—Clause.—
Terms of a clause in a deed of settlement which held to import that the survivor of three daughters, to whom a liferent of the testator's estate had been bequeathed, was entitled to the liferent of the whole.
The late Peter Findlater conveyed his property to trustees by his trust-deed of settlement, of which the ultimate purpose was thus expressed:—
“That upon the decease of the longest liver of me and my said spouse, the said trustees shall, after deducting the amount of the legacies in favour of my two daughters, and of my grandson above written, pay over the free yearly produce of my said estates, heritable and moveable, to my children after mentioned, namely, to Ann Findlater, spouse of Robert Turner, surgeon, formerly in Dumfries, now abroad; Hannah Findlater, above mentioned, and Margaret Findlater, also above mentioned; and in case the said Sarah Findlater, my spouse, enters into a second marriage, then two-thirds of the said yearly produce shall be paid to my said children, equally among them, share and share alike, and that during all the days of their lives respectively; declaring always, that the sums hereby directed to be paid over to my said children shall be so paid over to them respectively, exclusive of the jus mariti of their present husbands, or of any other husbands they may hereafter marry, and the receipts and discharges to be granted for the same to my said trustees, shall be valid and Sufficient without the consent of her or their husbands; and also declaring, that my said trustees shall dispone and convey the free residue of my said heritable and moveable estate to the lawful children of such of my said children above named as shall happen to leave issue, equally among them, share and share alike, and that in fee, heritably and irredeemably, it being my will that the said residue shall belong to my grandchildren equally among them, in capita, share and share alike, and that my own children shall have a right of liferent allenarly; and failing there being lawful issue of my said children, my laid trustees shall be bound to
Mr Findlater died in 1826, being survived by his widow and his three daughters mentioned in the will, and his widow died in 1831. One of the daughters, Mrs Murray, predeceased her, and another, Mrs Barber, died shortly after her, each leaving a family of children. The remaining daughter, Mrs Turner, who had been for some time married, but had only one child, as the only surviving daughter of the testator, now claimed the liferent of the whole trust-estate, while the children of the daughters deceased insisted that the life interest provided by the testator to each of his daughters did not accrue to the survivor, and that a right of fee had vested in them, though the exact amount of their shares might be liable to be affected by Mrs Turner having more children. For the purpose of having these respective claims determined, the trustees raised this multiple-poinding, in which the Lord Ordinary pronounced the following interlocutor, adding the subjoined note *:—
_________________ Footnote _________________
* “The Lord Ordinary considers this as a questio voluntatis; and, owing to the great vagueness of the expression, not unattended with difficulty. On the one hand, it may seem improbable that the testator should have meant that the children of his predeceasing daughters should get nothing, while any of their aunts was alive; but, on the other hand, it is still more improbable that, in the event of their predeceasing without children, their shares of the liferent should accumulate in the hands of the trustees, for some uncertain distribution, on the death of the survivor, rather than accrue immediately to that survivor, to whose children (if she had any) the whole must ultimately come. But what decided the opinion of the Lord Ordinary was, the obvious impossibility of making any actual distribution of the fee till it was seen, at the death of the last surviving daughter, in what shares, and among how many grandchildren it was to be divided. If it had been to be divided among the grandchildren per familias, and not per capita, and if each set of children had been to get the same share of the fee, as their respective mothers had originally of the liferent, there would have been no difficulty in the construction. But the grandchildren are to get the whole fee equally among them, per capita; and how, therefore, can it be divided till it be seen how many are to share in the division? The claimant, Mrs Turner, has yet but one child, and her predeceasing sisters have left (between them) six or seven. But Mrs Turner may have seven more children yet before she dies; and how could the trustees divide the fee (or any part of it) among the eight existing children, when it may turn out that it should have been divided among fifteen?
“Another conclusive reason for holding that the liferent must have been meant to accrue to the surviving daughters, arises from the absurd consequences which would follow, on any other supposition, in a case which must be held to have been in contemplation, and is indeed expressly provided for, as to the destination of the fee. If none of the daughters leave any children, the fee of the testator's whole estate is directed to be made over to ‘his own heirs whatsoever;’ that is to say, to heirs more remote and less favoured than his immediate descendants. It seems strange enough that the testator should have confined his own daughters to a liferent, and reserved the fee to such persons; but it is utterly inconceivable that he should have meant to let two-thirds of the liferent also accumulate for their benefit, while his one surviving daughter was restrained to her original share of a third. The latter words of this clause plainly imply that the trustees were to keep the whole of the estate in their hands till it should be finally ascertained whether it was to go to grandchildren, or to remoter heirs; and are therefore conclusive against the competency of any present or earlier distribution.”
“Finds, that, according to the sound construction of the trust-settlement of the late Peter Findlater, the claimant, Ann Findlater, or Turner, being the only surviving daughter of the said Peter, is entitled to the total liferent of the trust-estate during all the days of her life, and that there is no room for any distribution of the fee among the children of the daughters while any of the daughters survive; and appoints the case to be enrolled, that parties may be prepared to state what decerniture they require, or would suggest, to apply this finding to the present state of the trust.” An interlocutor carrying this finding into effect was immediately afterwards pronounced.
Barber, &c. reclaimed.
The Court accordingly adhered.
Solicitors: Joseph Mitchell, W. S.— Alex. Simpson, S. S. C.—Agents.
