Scottish Court of Session Decisions

Misses Janet and Jane M'Gown of Greenock, by trust-deed, left their whole estate to trustees, with directions to divide the same into six equal parts. Two-sixths were to be liferented by their brother Malcolm, and to go to his daughters, and failing daughters to his sons, in fee; and three-sixths were to go in the same way to their brothers John and Duncan, and their sister Margaret, and their daughters and sons, being one-sixth to each family. In regard to the remaining sixth part, it was provided that it was to be held in trust “for behoof of the daughters of our deceased sister Mary M'Gown, spouse of the late George Robertson, merchant in Greenock, equally among them, or the lawful issue of such of them as may predecease the survivor of us, in fee; but, failing daughters or their issue, then the said sixth part or share shall belong to their surviving brothers, equally among them, in fee.” Mary M'Gown or Robertson had four children, Susan, Rachel, George, and Archibald. By a codicil the trusters directed “that Susan Robertson shall, in respect of her marriage, have no part of the said one-sixth part or share, but the same shall belong and be paid over to George Robertson her brother: and farther, that Archibald Robertson, also son of our said deceased sister, shall have the part of the said sixth share which would have fallen to his deceased sister Rachel Robertson had she been in life.”

George Robertson predeceased the survivor of the trusters, leaving a daughter. Archibald, his brother, now claimed the half of the sixth share which would have gone to George had he survived. It was also claimed by George's daughter, in virtue of the implied condition si sine liberis decesserit. She also contended that in no case had Archibald Robertson any right to it.

The Lord Ordinary ( Barcaple) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties in the competition, and considered the joint-case for the claimants Archibald Robertson and Anna Maria Adelaide Robertson, and the mutual deed of settlement by Misses Janet and Jane M'Gown, and codicil thereto, Finds that, on a sound construction of the said mutual settlement and codicil, the condition si sine liberis applies to the bequest of one-half of one-sixth part of the free residue of the estate in favour of the deceased George Robertson, constituting the fund in medio; and that the claimant Miss Robertson, as only child of the said George Robertson, is entitled to take said bequest: Repels the claim of the said Archibald Robertson: Sustains the claim of the said Miss Anna Maria Adelaide Robertson; ranks and prefers her to the whole fund in medio, and decerns: Finds the said Archibald Robertson liable in the expenses of the competition: Finds the real raisers entitled out of the fund in medio to the expenses of raising and bringing the action into Court: Allows accounts of said expenses to be given in, and, when lodged, remits the same to the auditor to tax and report.

“ Note.—There was clearly no vesting in the person of George Robertson, who predeceased the last surviving testatrix. The question is whether his only child, the claimant Miss Robertson, is entitled to take in his room? It is not necessary to determine what would have been the rights of parties in this respect if the matter had stood upon the provision as to the sixth share to be held during the life of Robert M'Gown, as it was conceived in the original deed of settlement. The Lord Ordinary thinks that the codicil contains a new and different provision in regard to that share, which must be held to regulate the present question.

“By the deed of settlement that share was bequeathed to the daughters of the trusters’ deceased sister Mrs Robertson, or the lawful issue of such of them as might predecease the survivor of the trusters, in fee. Failing daughters or their issue, then the share was to belong to their surviving brothers, equally among them. By the form of bequest the sixth share was given as a unum quid, first to the daughters, equally among them, and their issue; and then, failing daughters and their issue, to their surviving brothers, equally among them. Both the daughters and their brothers were to take as a class, and they were to take the sixth share equally among them.

“By the codicil the disposal of this share is entirely changed. The trusters’ sister, Mrs Robertson,

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had two daughters, Susan and Rachel, and two sons, George and Archibald. At the date of the codicil Susan Robertson had married, and Rachel had died unmarried. The trusters, by the codicil, declare, in reference to the sixth share in question, that Susan shall, in respect of her marriage, have no part of it, ‘but the same shall belong and be paid over to George Robertson, her brother.’ The language is inaccurate, but the meaning plainly is that George is to take the half of the sixth share to which Susan would have been entitled if, according to the original intention of the trusters, it had divided between her and her sister, the latter being still in life. The codicil goes on to declare that Archibald shall have the part of the sixth share that would have fallen to his deceased sister Rachel had she been in life. The brothers are not merely brought in to take, to the exclusion of Susan, the surviving sister, and her issue, to whom they were postponed in the original settlement; they are no longer called as a class, and they are not to take one legacy equally between them. They are each called nominatim and separately, and they each get a separate and distinct legacy. This is not a mere change of expression. It introduces elements which the law looks to as of primary importance in determining the character of a bequest, and the presumable intention of the testator in the event of the predecease of the legatee. The Lord Ordinary thinks that intention must in the present case be gathered from the separate bequest to each of the brothers in the codicil, and not from the joint bequest to them as a class, and only as conditional institutes, made under different circumstances in the original settlement.

“If this is the mode in which the settlement and codicil are to be read, there does not appear to be any room for doubt that the condition si sine liberis must apply. The trusters throughout their settlement are providing for nieces and nephews, preferring nieces, as was natural in their position, but excluding those whom they thought to be provided for by marriage. One of the daughters of their sister, Mrs Robertson, being married, and excluded on that ground, and the other having died, they leave separate but equal bequests to her two sons nominatim. This is just the kind of case to which the condition most clearly applies.”

Archibald Robertson reclaimed.

Gifford and Lorimer for him.

Millar, Q.C., and Burnet in answer.

At advising—