Scottish Court of Session Decisions

Mr Alexander Macdonald, principal keeper of the Register of Deeds, residing in Regent Terrace, Edinburgh, and Mrs Elizabeth Ewart or Macdonald, his wife, executed a mutual trust-disposition and settlement, dated 5th July 1837, whereby, on the narrative that they had entered into no contract of marriage, and were resolved to settle their affairs in such a manner as to prevent all disputes after their deaths, they gave, granted, assigned, and disponed to certain trustees their whole heritable and moveable property of every description in trust for the purposes therein expressed. The trusters also appointed the trustees to be their executors. By that deed the liferent of the trust-funds, with the exception of the sum contained in a policy of assurance on Mr Macdonald's life, is provided to the survivor, and in the event of there being no issue of the marriage alive at the death of the survivor, the residue of Mr Macdonald's estate, both heritable and moveable, was directed to be made over to the children of the marriage of Mr and Mrs Sanderson, share and share alike, unless otherwise provided by a writing under Mr Macdonald's hand. By a holograph testamentary writing or codicil executed by the said Alexander Macdonald alone, dated 18th June 1845, he declared that certain assets were the property of his wife, Mrs Macdonald, and directed his trustees to make them over to her, and he made several specific legacies of various articles to friends. That codicil then proceeds:—“I further direct my said trustees to transfer my five shares of Commercial Bank stock to the five sons of Henry Sanderson, surgeon, one to each—John Thom, Alexander Macdonald, Henry, Leslie Moodie, and William Andrew.” After some other legacies, the codicil proceeds:—“The rest of my moveable property, including money in the banks and all debts due to me, household furniture of every description, books, paintings, and engravings, Water Company stock, and fifteen shares of the Scottish Union Insurance Company, to be sold by my said trustees as soon as convenient after my death, and the proceeds to be equally divided among the children of the said Henry Sanderson.” By a second codicil or memorandum of bequests, dated 27th March 1847, Mr Macdonald bequeathed certain other articles to various individuals, and amongst others, “to John T. Sanderson, M.D., now in the Bombay Presidency, I leave and bequeath my two shares of stock of the British Linen Company, lately purchased by me, so much gratified with his conduct to his brother Henry of late, and failing him by death, to Alexander M. Sanderson and Henry Sanderson his brothers.” Mr Macdonald died on the 23d day of December 1850, survived by his widow, there never having been any issue of the marriage. At the period of Mr Macdonald's death the following children of the marriage between Mr Henry Sanderson and his wife were alive, viz.— John Thom Sanderson, Alexander Macdonald Sanderson, Henry Sanderson junior, Leslie Moodie Sanderson, William Andrew Sanderson, and Mrs Mary Sanderson or Paterson. Mrs Macdonald was paid by the trustees the whole annual produce of the estate, except the interest of the sum due under the policy of assurance before mentioned, from the date of Mr Macdonald's death till her own death, which took place on the 23d May 1871. Twoof Mr and Mrs Henry Sanderson's children predeceased Mrs Macdonald, viz.—Dr John Thom Sanderson, who died in the East Indies on 15th February 1864, having left a will dated the day of his death, in favour of his wife Mrs Ann Godden or Sanderson, now Wardrope; and William Andrew Sanderson, who died on the 1st day of January

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1869, leaving a will in favour of his father, Mr Henry Sanderson. The trustees being about to proceed to divide the whole trust funds, were prevented from doing so by certain questions which arose as to the vesting of the residuary bequests to the children of Mr and Mrs Henry Sanderson, and as to the right to the bank shares specifically bequeathed as aforesaid.

The first parties to the case were the four surviving children of Mr and Mrs Sanderson, who maintained that the residue of the truster's estate, heritable and moveable, did not vest until the death of Mrs Macdonald, the liferentrix, on 23d May 1871, and that the said first parties, as surviving legatees at that date, were entitled to that residue.

The second parties were Mrs Wardrop, widow of Dr John Thom Sanderson, and her husband, and their marriage-contract trustees, who made no claim to the residue of the heritable estate, but maintained that the residue of the moveable estate vested at the death of Mr Macdonald on 23d Dec. 1850, and that Mrs Wardrop, as executrix of her deceased husband, who was a surviving legatee at that date, was entitled to a share of that residue.

Similar pleas as to the period of vesting were maintained by the first and second parties respectively, with reference to the bank shares, which were the subject of the first and second questions. In these circumstances, the parties submitted this Special Case, and desired the opinion and judgment of the Court on the following questions of law:—

“(1) Did the bequest of one share of the Commercial Bank stock to each of the five sons nominatim of Mr and Mrs Henry Sanderson, vest these shares in the said sons respectively at the death of Mr Alexander Macdonald, the truster, or did this bequest not vest until the death of Mrs Macdonald, the liferentrix? And in the latter case, did the bequest of one share each to the two sons (John Thom Sanderson and William Andrew Sanderson), who predeceased Mrs Macdonald, lapse and become part of the residue? (2) Did the bequest to John Thom Sanderson of the two shares of the British Linen Company's Bank stock vest these shares in him at the death of the truster; Mr Macdonald, or did the said bequest not vest till the death of the liferentrix, and in the latter case are Alexander Macdonald Sanderson and Henry Sanderson junior now entitled to the said two shares as conditional institutes? (3) Did the residue of the moveable estate which belonged to Mr Macdonald vest in the children of Mr and Mrs Henry Sanderson alive at the death of Mr Macdonald, or did the said residue vest only in the children alive at the death of Mrs Macdonald, the survivor of the trusters?”

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