Scottish Court of Session Decisions

Lord Cowan—The questions to be answered in this Special Case relate exclusively to the estate of Mr Moir; and the deeds to be particularly attended to are—(1) The contract of marriage 1830; (2) the trust-disposition and settlement of 1865; and (3) the codicil thereto of September 1870.

By the contract Mr Moir, in contemplation of the marriage, conveyed to himself and his intended wife, in conjunct fee and liferent for her liferent use allenarly, and to the child or children of the marriage in fee, the whole estate and effects then belonging, or which might at the period of his death belong to him,—with power at any time of his life to divide among the children the whole property conveyed, in such proportions, and with and under such conditions, as he might appoint, and failing such appointment the children to take equally.

By the trust-disposition and settlement this power of division was exercised by Mr Moir; and, there being four children of the marriage, he directed his trustees to divide the whole free residue of his estate into four equal shares, each child to have one share, subject to the conditions therein stated.

By the third deed, executed in 1870, an alteration was effected upon the provision contained in the deed of 1865 in relation to his daughter Mary Elizabeth, whose state of health and mental condition were such as to render her unable to manage her affairs and property. In the deed of 1865, the fourth share of the residue given to her was appointed to be retained by the trustees, and to be managed by them for her behoof,—the whole or such part of the income arising from her share of the estate as should be sufficient to provide for her every possible comfort being devoted to that purpose; and the surplus income, if any, of the principal sum being directed to be accumulated, if she continued in the same state, and upon her death to be paid to his other then surviving children in equal shares; but in the event of her recovering her mental health and power of managing her affairs, the trustees were directed to pay over her share of residue to herself absolutely. This provision was altered by the codicil of 1870, and the direction to his trustees revoked and recalled; and “in lieu thereof I direct and appoint my trustees to purchase for her” an annuity of £300 per annum, which, it is said, would procure for her every comfort, “and enable the trustees to wind-up my affairs at once.”

There can be no doubt of the intention of Mr Moir to substitute this direction for that contained in the deed of 1865 relative to the share of the estate provided to his daughter Mary Elizabeth, and to appoint such portion only of his means and estate to be employed for her behoof as should be necessary to purchase the prescribed annuity. This, and no more, was to be her share of the succession provided to the children of the marriage by the antenuptial contract; and under the power of division I can have no doubt that Mr Moir was entitled so to limit his daughter's interest in the succession. To meet such an emergency, and to control the quasi jus crediti conferred by the contract, the expressions employed are peculiarly appropriate. Without entering on the question how far at common law this could have been effected, it is beyond doubt, I apprehend, that under this contract such power was in the father; and in the situation in which the young lady unfortunately was, and is, it was in every way a suitable and proper act to appoint the share allotted to her to be converted into an annuity. The power reserved by the contract expressly provided that the estate might be apportioned among the children “in such proportions and under such conditions” as might be appointed by Mr Moir. And had the deed of 1865 contained, as regards this daughter, the appointment for her behoof of an annuity to the effect contained in the codicil of 1870, and the rest of the estate been expressly provided to the other three children in equal shares, there could not have been any doubt as to the competency of such an arrangement. But the same result must, I think, be held to be the legal effect of the testamentary writings as they stand.

There can be no question of the testator's intention to divide the whole residue of his estate among his four children; and had Mary Elizabeth predeceased her father the appointment in the deed of 1865, although expressed to the effect of giving one-fourth to each of the four children, must have carried the whole succession to them, and the shares of the three survivors would have been enlarged by accretion. They are truly conjuncti in re,—the whole succession of the deceased being given to them in equal shares. And when one of a number of disponees so situated predeceases, the shares of the others become enlarged jure accrescendi. That is the rule unless a contrary intention is indicated by the testator. I do not know any better explanation of the principle on which this legal result is based than that contained in the report of Robertson v. Robertson, 10th December 1819, Hume 273. The distinction between the position of special legatees and parties taking the whole estate under a general settlement was fully recognised by the Court; and it was held that the whole estate of the testator being conveyed its division must be among those of the disponees who survive. Nor has it been held to impair the application of the principle that specific shares are given to parties thus conjoined in the bequest of the general estate. This was expressly found by Lord Wood, whose judgment was acquiesced in, in the case of Bannerman, reported in a note on p. 1173, 6 Dunlop, under date 20th June 1844, where the estate was declared to be divisible into twenty-four shares, but from failure of certain of the disponees before the succession opened, the shares of each of the others was by accretion held to be a twenty-first share instead of a twenty-fourth or twenty-second share.

Applying this principle to the present case, such a capital sum as the purchase of the annuity of £300 will fall to be taken out of the funds of the estate, and each of the three surviving children will be entitled to have one-third of the whole residue. And this result is not only consistent with the obligation under which the testator lay, but is in accordance also with his evident intention, indicated throughout his whole settlements, and in particular by the concluding words in the codicil 1870.

I am therefore of opinion that the first question in the Special Case should be answered in the affirmative; and this at once supersedes the necessity of any answer to the second and third questions,

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