Scottish Court of Session Decisions

The late Archibald Reid, the testator, who died on 7th June 1870, without leaving issue, but survived by his wife Mrs Elizabeth Spens Park or Reid, had three brothers and two sisters who survived him, and were the first parties to this case, and one sister Miss Elizabeth Reid, who also survived him, but died a few months afterwards, leaving a trust-settlement; her trustees were the second parties to this case. Mr Reid was also survived by certain nephews and nieces, the children of his three brothers. They were the third parties to this case. Mr Reid's own testamentary trustees were the fourth parties.

Mr Reid left a trust-disposition and settlement, dated 15th October 1865, whereby he left an annuity of £500 a-year to his widow, together with a legacy of £2000. His trust-deed then proceeded—“ In the third place, I direct and appoint my trustees to make payment of all legacies or bequests which I may leave by any codicil hereto, or writing under my hand, though not formally executed. In the fourth place, in regard to the income of the remainder of my means and estate during the lifetime of my wife, I direct and appoint my said trustees to divide the same into nine parts or shares, and to pay the same to my brothers and sisters, the said James Reid, Francis Reid, Andrew Paterson Reid, Barbara Corbet Reid, Elizabeth Reid, and Isabella Reid, residing at Row, near Helensburgh, in the proportions following, viz., two-ninth parts to each sister, and one-ninth part to each brother; and in case of the death of a brother or sister without leaving issue, the share of such deceaser shall be divided among the survivors equally, share and share alike; and after the decease of my wife I appoint my said trustees to pay and divide the whole income of the residue of my estate to and among my whole brothers and sisters, and the survivors of them, equally among them, share and share alike; provided that if any of my brothers or sisters shall die leaving lawful issue, whether in the lifetime or after the decease of my said wife, such issue shall receive, if more than one, equally among them, the parent's share of the income of my estate . . . declaring, as it is hereby expressly provided and declared, that the shares of the income of my said means and estate provided to my brothers and sisters shall be purely alimentary to them, and not alienable or assignable or affectable in any way by their debts or deeds, or attachable by the diligence of their creditors; and the shares of the said income provided to my sisters shall be, as the same are hereby declared to be, exclusive of the jus mariti and right of administration of any husbands they may have, . . . In the fifth place, at the first term of Whitsunday or Martinmas which shall happen six months after the decease of the longest liver of the said Mrs Elizabeth Spens Park or Reid, my wife, and my said brothers and sisters, I direct and appoint my said trustees to divide and pay the whole residue and remainder of my said means and estate equally amongst, and to the lawful children, if any, of my said brother Francis Reid, and my said brother Andrew Paterson Reid, then surviving, per capita, and the issue of any such children who may have predeceased leaving issue, such issue, if more than one child, taking the share or shares which would have fallen to their parents had they survived, equally among them, and being also entitled to the interest or annual proceeds of their parents' shares till paid, and failing a child or children of my said two brothers, or issue of such child or children, I direct and appoint my said trustees, in like manner, to divide and pay the foresaid residue of my means and estate to the daughter of my said brother James Reid, and failing her, to her children, equally among them, and the issue of any such children or child who may have predeceased leaving issue, such issue, if more than one child. taking the share or shares which would have fallen to their parents had they survived, equally among them, and being also entitled to the interest or annual proceeds of their parents' shares, till paid.”

Besides his trust-settlement Mr Reid left the following holograph codicil, in the form of a letter to his trustees:—

“22 Buckingham Terrace, Edinburgh.

James Reid, Francis Reid, Andrew Paterson Reid, Edward Collins junior, Hugh Moncrieff, and Adam Paterson, Esqrs.

Dear Sirs,—I hereby give to my wife, Elizabeth Spens Park, the right, at any time within five years after my death, to purchase my house, No. 22 Buckingham Terrace, Edinburgh, on payment to you as trustees the sum of £2700, which sum is to be divided among my sisters and brothers in the proportions mentioned in my will, dated 16th October 1865; or, in her (my wife's) option, she is to have the right to remain in the house as long as she pleases, on payment to you of £108 sterling as yearly rent, which sum is to be divided half-yearly among my sisters and brothers, in the proportions stated in my above-mentioned will.—I am, dear Sirs, yours very truly. (Signed) Archd. Reid.”

Mrs Reid, the truster's widow, who still survives, exercised the right conferred upon her of purchasing the house 22 Buckingham Terrace, Edinburgh, at the price of £2700. The sum was paid to the trustees, and remained in their hands; and as certain questions arose as to the proper mode of dividing it, this Special Case was presented to the Court.

The first and second parties to this case both maintained that, according to the said holograph letter or codicil, the said sum of £2700 fell to be paid at once. The first parties maintained that the division should be in the proportions of one-ninth to each of the truster's three brothers, and two-ninths to each of his two surviving sisters,—the two-ninth shares which would have been payable to the said Elizabeth Reid, had she been now alive, being divisible equally among them; while

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the second parties maintained that they were entitled to the said Elizabeth Reid's two-ninth shares.

n the other hand, the third parties maintained that the annual income only of the said sum of 2700 fell to be paid to the first and second parties, in the manner pointed out in the fourth purpose of the trust, with reference to the income of the residue, and that the trustees were bound to preserve the capital until after the death of Mrs Reid and the truster's brothers and sisters, when it would fall, as part of the residue of the trust-estate, to be divided among the parties then entitled to the residue, in terms of the fifth purpose of the ust.

The opinion and judgment of the Court were requested upon the following questions—

“1. Whether the said sum of £2700 falls to be paid over now to the surviving brothers and sisters of the truster, or to them and the trustees of the said Elizabeth Reid; and if so, in what proportions the said sum falls to be divided among the said surviving brothers and sisters and the said trustees, or such of them as may be found entitled to participate therein? or,

2. Whether the said surviving brothers and sisters, and the survivors and survivor of them, and the issue of such as may die leaving lawful issue, are entitled only to the annual income of said sum as part of the residue of the trust-estate, in terms of the fourth purpose of said trust, the capital falling to be retained by the trustees until the death of the longest liver of the truster's widow and of his said brothers and sisters, and then divided as part of the residue, in terms of the fifth purpose of the said trust?”

Shand for the first parties.

Watson for the second parties.

Solicitor-General (A. R. Clark) and Lancaster for the third and fourth parties.

At advising—