Scottish Court of Session Decisions

This was a question between Mrs Scott of Gala and Mrs Gordon, widow of the late Mr Francis Gordon of Kincardine Lodge, and came before the Court in the form of a Special Case. Mr Gordon died in 1857, leaving a trust-disposition and settlement, dated in 1851, to which there were six subsequent codicils annexed. By this deed he provided that his trustees should entail the lands of Kincardine in favour of the eldest son of his son, and his heirs in the event of the son marrying and having a family. There were a number of substitutions in the event of the son failing, and, among others, Mrs Scott of Gala, who is a granddaughter of the truster, was called to the succession. By the sixth purpose of the deed Mr Gordon left his widow his house in Golden Square, Aberdeen, and by one of the codicils he gave her a liferent of the furniture of the house in Kincardine Lodge. The deed further provided as follows:—“It is my will and desire that my dear wife should occupy the house, offices, and garden at Kincardine Lodge, with such farm as my trustees may deem proper, and that so long as my said son continues unmarried; but if at any time it should appear a desirable arrangement that my said son, though unmarried, should reside at Kincardine Lodge, it is my wish, but only if my spouse approves of such arrangement, that she and my son should occupy together the said house, offices, and garden; if my said son should marry with approbation, as aforesaid, he shall then be entitled to the sole possession of the said house, offices, and garden at Kincardine Lodge.” The question put in the Special Case turns on the construction of this clause.

Mr Gordon was survived by his widow, a daughter, who married, but who is now dead, and a son, who died last year, unmarried. The event has thus occurred which required the trustees to entail the lands of Kincardine in favour of Mrs Scott of Gala, the eldest daughter of the truster's daughter, and she raised the question whether she is not entitled to succeed to the mansion-house, offices, and garden, &c., as well as to the lands directed to be entailed.

For Mrs Scott it was contended that the truster only intended to give his widow a limited right to the mansion-house, viz., “so long as my said son continues unmarried;” and that event being no longer possible, the widow's right was now defeated. The provision of the trust-deed, that the trustees should entail the lands when the son married and succeeded, evidently showed the truster's intention that the person succeeding under the destination should have the lands and the mansion-house, &c., together.

On the other hand, it was argued by Mrs Gordon that the conveyance to the widow of the mansion-house was truly a liferent, and that the truster intended to defeat her right only in the event of his son marrying. That event could not now occur, and therefore the widow had a right of occupation, which was only defeasible on her death. If the truster had intended that his granddaughter when succeeding to the lands should deprive the widow of the mansion-house, as well as the son, he would have expressly provided so. There was no authority in the deed for equipareting the death of the son to his marriage.

Page: 259↓

The Court held, without difficulty, that the truster only intended to confer a limited right on his widow—viz., so long as his son remained unmarried, and as his death rendered it impossible that that could be predicated, her right had ceased. Further, it was clearly the intention of the truster that the widow's right to the mansion-house should terminate when the fee of the lands was full, as it had now become.