Scottish Court of Session Decisions

Lord President—The general intentions of the testatrix with regard to the disposal of the residue of her estate are easily understood. She intended to divide it into two halves, one for a family of Grieves, and the other for a family of Moffats. There is no difficulty about the half given to the Grieves. Mrs Grieve, the mother, is to have the liferent, and upon her death the fee is to be divided among her children alive at the death of the testatrix. The children, both sons and daughters, are all made fiars. But with respect to the half which is given to the Moffats, there is this peculiarity, that the testatrix has restricted the share of the two daughters to a liferent, and given the fee to their children. This is how the question arises. I cannot think that by restricting the daughters' shares to a liferent the testatrix intended to carry away from the Moffats any part of the residue destined for them, or, in other words, to leave any part of it in intestacy. She may have done this without intending it, but the presumption is very strong against her intending to do so. We must endeavour to construe the clause so as not to land in intestacy. The children of Mrs Moffat, among whom the share liferented by their mother is to be divided, are to be the children who survive the testatrix. The period of division is the death of the liferenter. The rule of division is equal shares, not specified by number the effect of the directions is that the number of shares into which this half is to be divided depends on the condition of matters when the trustees proceed to exercise their office. Prima facie, it must be a number of shares corresponding with the number of children who survive the testatrix. As all the children survived the testatrix, the number of shares is apparently five. When the period of division arrives, the trustees find themselves in this position. Mrs Purves survived the testatrix, but no right ever vested ill her. She was confined to a bare liferent, which could only commence at her mother's death. She predeceased her mother, so that she never had anything vested in her. The trustees will consequently act in accordance with the intention of the testatrix, if they divide this half of the residue among the children of Mrs Moffat, excluding Mrs Purves. It is quite plain that the Moffat family are intended to get the half. It is a casus improvisus (though that is a somewhat perilous phrase to use where the heirs ab intestato are in the field), in the sense that the particular tiling which has occurred has not been made matter of special direction. The question then is, whether in the genera] scope of the settlement there is not enough to guide the trustees. This view excludes intestacy. As to the next of kin of Mrs Purves, their case is quite hopeless; she never had anything vested in her.

The other Judges concurred.