Scottish Court of Session Decisions

This was a Special Case submitted for the opinion and judgment of the Court by the following parties viz., (1) W. D. Anderson, merchant in London, sole surviving assumed and acting trustee of the late Walter Ritchie, of the first part; (2) Martha Ritchie, daughter of the truster, of the second part; (3) Thomas Ritchie, Walter William Ritchie, and Helen Ross Ritchie, sole surviving children of the deceased Agnes Ritchie, another daughter of the truster, of the third part; (4) Agnes Ritchie, granddaughter of the truster, and daughter of his son Thomas, of the fourth part; (5) Captain Edward Draper Elliot, R.H.A., and Isabella Agnes Elliot or Percival, wife of Captain Percival, only surviving children of the late Isabella Ritchie or Elliot, a daughter of the truster, and Captain Percival for his interest, of the fifth part; (6) The surviving, accepting, and acting trustees under Isabella Ritchie or Elliot's marriage contract, of the sixth part; (7) The residuary legatees of Thomas Alexander, husband of Janet Ritchie, also a daughter of the truster; the sole executrix and universal legatee of Margaret Ritchie, also a daughter of the truster; and the surviving executors of James Ritchie, son of the truster, of the seventh part; (8) Thomas Kenneth, James and John Ritchie, and Isabella Ritchie or Macarthur, surviving children of John Ritchie, a son of the truster; and the Rev. James Macarthur for his interest, of the eighth part; (9) Henrietta Ritchie, widow of Walter Adolphus Ritchie, son of the truster's son John, and her husband's sole executrix, of the ninth part.

The circumstances under which the Special Case came before the Court were as follows:—

Walter Ritchie, the truster, died at Greenock in November 1827, leaving a trust-disposition and settlement, by which he conveyed to trustees his whole estate, heritable and moveable. The original trustees are all dead, and William Dunlop Anderson, the party of the first part, is the sole surviving assumed trustee acting under the trust-deed. The purposes of the trust were, firstly, to convert the whole estate into cash, and to pay all debts, and thereafter the truster gave directions as to the residue of his estate in the following terms;—‘And with regard to the residue and remainder of my estate, after the payment of my debts as aforesaid, they shall hold the same for the use and behoof of Agnes Cuthbert Ritchie, my spouse, in case she should survive me, but that in liferent, for her liferent use allenarly, and failing her, by death, for the use and behoof of Margaret Ritchie and Martha Ritchie, my two unmarried daughters, and that also in liferent, for their liferent use only; but in the event of either or both being married, their liferent right therein shall thereafter entirely cease and determine, and the fee of the said remainder and residue of the estate shall then belong to and become the absolute property of the said Margaret Ritchie and Martha Ritchie, and of Janet Ritchie, spouse of Thomas Alexander, in Greenock, and of Agnes Ritchie, spouse of John Ritchie, sometime merchant in Liverpool, my daughters, and of Catherine Noble, relict of Thos. Ritchie, my deceased son, equally among them, arid share and share alike, but if any of my said daughters or the said Catherine Noble shall have then deceased, leaving a child or children, such child or children shall be entitled among them to the same share of my estate which their mother would have been entitled to had she been in life, it being my intention that, in case my daughters, or any of them, or

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my said daughter-in-law, shall die before the succession to my said means and estate opens to them, that their child or children, that is the child or children of my said daughters, and the child or children of my daughter-in-law by my said son Thomas, who may survive them, shall have their right equally among them to the same share of my estate which their mother would have been entitled to if in life; and in the event of the death of either of the said Margaret Ritchie and Martha Ritchie without being married, then, and in such an event, I hereby appoint and ordain that the share which would have belonged to the deceaser, had she married, shall accresce and be divided equally among my other daughters and my daughter-in-law before specially named, and failing any of them by decease, their children shall succeed to the mother's share in the manner and terms before pointed out.’ The free residue now in all amounts to £4356, 9s., and the truster's widow received the annual proceeds thereof until her death in 1835, after which Margaret and Martha Ritchie, the truster's daughters, enjoyed the liferent until Margaret's death on 7th April 1872. Margaret Ritchie was never married; she left a testament, dated 28th November 1848, by which she bequeathed her whole estate and effects to her unmarried sister Martha Ritchie, the party of the second part, as her sole executrix; in her capacity of executrix, also, the party of the seventh part. Janet Ritchie or Alexander, the eldest daughter of the truster, died in 1841, and her husband in 1838, leaving no surviving children. Their residuary legatees were also included as parties of the seventh part in the case. Agnes Ritchie or Ritchie, the second daughter of the truster, died on 9th June 1857. Her husband, John Ritchie died November 1830. They had four children, of whom three survive, viz., Thomas Ritchie, Walter William Ritchie, and Helen Ross Ritchie, the parties of the third part. Catherine Isabella Noble or Ritchie (designed in the trust-deed ‘Catherine Noble, relict of Thomas Ritchie, my deceased son’), died in 1830. She had three children, of whom one survives, viz., Agnes Ritchie, the party of the fourth part. Another child, Isabella Ritchie or Elliot, was married to Major-General Edward Alured Elliot. She died in 1843, leaving three children, of whom two survive, viz., Edward Draper Elliot and Isabella Agnes Elliot or Percival, spouse of Lewis Percival. The truster had three sons, named Thomas, James, and John Ritchie. Of these Thomas predeceased him, and is described in the trust-settlement as ‘my deceased son.’ His children and grandchildren were respectively the parties of the fourth and fifth parts. The truster's son, James Ritchie, died in November 1844, unmarried, leaving a testament, dated 22d September 1841, by which he bequeathed his whole means and estate to his sisters Margaret and Martha Ritchie, and the survivor of them, and appointed them and his nephew, Thomas Ritchie to be his sole executors. Martha Ritchie and Thomas Ritchie, as surviving executors, were two of the parties, of the seventh part. The truster's son John died in August 1836. He was married to Isabella Ogilvie, and they had five children, viz.—(1) Walter Adolphus Ritchie, who died in June 1861, leaving a widow, Henrietta Anne Good—enough, and an only child, Annie Ritchie, both of whom survive. He also left a testament, dated 11th August 1858, by which he named the said Henrietta Anne Goodenough or Ritchie as his sole executrix and universal legatee, the party of the ninth part; (2) Thomas Kinneth Ritchie; (3) James Ritchie; (4) John Ritchie; (5) Isabella Buchanan Ritchie or Macarthur, wife of the Rev. James Macarthur, all of whom survive, and were called as parties of the eighth part.

In consequence of the death of Margare Ritchie, one of the liferenters, questions to the following effect have arisen—(1) Whether the whole or part of the residue of the trust-estate is now to be divided among the beneficiaries? and (2) Who are the parties entitled to participate in such division.

It was maintained for the second party, that on the death of Margaret Ritchie on 7th April 1872, unmarried, she became, and is now, entitled to the liferent of the whole of the residue and remainder of the truster's estate; or otherwise, in the event of the said residue being now divisible, that no right of fee therein vested in any of the beneficiaries until after the death of the said Margaret Ritchie, and that the said second party is now entitled to one-third part or share of the said residue or remainder of the truster's estate.

It was maintained for the parties of the third, fourth, fifth, sixth, and seventh parts, that on the death of Margaret Ritchie, on 7th April 1872, unmarried, the fee of the whole residue became divisible among the parties entitled under the trust-disposition and settlement to participate in the residue.

It was maintained for the parties of the fifth, sixth, and seventh parts, that a right to the fee of the residue of the trust-estate vested a morte testatoris in each of the truster's four daughters, Janet, Agnes, Margaret, and Martha, and in his daughter-in-law, Catherine Isabella Noble or Ritchie, subject to the successive liferents of the truster's widow, and of his daughters, Margaret and Martha, and that equal shares of the residue, in so far as now divisible, belong to Martha Ritchie, to the representatives of Janet Ritchie, to the representatives of Margaret Ritchie, to the children of Agnes Ritchie, and to the children of Catherine Isabella Noble or Ritchie, per stirpes et non per capita.

It was maintained for the parties of the second, third, fourth, eighth, and ninth parts, that no right to the residue vested a morte testatoris in any of the daughters, or in the daughter-in-law of the truster.

In the event of the residue being held not to have vested in any of the beneficiaries until the death of Margaret Ritchie, and of the contention of the second, third, and fourth parties being sustained, it was further maintained for the parties of the fifth part, that they (the said fifth parties) were entitled, as coming in place of their deceased mother, Mrs Elliot, one of the children of Mrs Catherine Noble or Ritchie, to participate ( per stirpes) with the parties of the fourth part in the share of the residue falling to the children of Mrs Catherine Noble or Ritchie.

It was maintained for the parties of the eighth and ninth parts that the right to a share of the residue vested in the children of John Ritchie, the truster's son, as heirs in mobilibus of the truster ab intestato, and that they were entitled to participate in the said residue rateably along with the other descendants of the truster, to the extent of the share which John Ritchie would have taken if alive.

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The parties agreed that the expense of the proceedings should be paid out of the residue, or such part thereof as might be found to be divisible.”

The following questions of law were submitted for the opinion and judgment of the Court:—“(1) Whether, on the death of the said Margaret Ritchie, on 7th April 1872, the liferent of the residue fell to be enjoyed exclusively by the said Martha Ritchie, or the whole of the residue of the trust-estate became divisible, in terms of the directions contained in the said Walter Ritchie's trust-disposition and settlement? or Whether, on the death of the said Margaret Ritchie, one-half, or any other, and if so what, parts of the said residue became divisible as aforesaid? (2) Whether, at the death of the truster a right to an equal share of the residue vested respectively in Janet Ritchie or Alexander, Agnes Ritchie or Ritchie, the daughters of the truster, and Catherine Isabella Noble or Ritchie, the daughter-in-law of the truster, all of whom predeceased the said Margaret Ritchie, and in the said Margaret Ritchie herself, and passed to their respective representatives and assignees? (3) Whether, of the residue, or such part thereof as may be found to be now divisible, one-third share belongs to the said Martha Ritchie, the party hereto of the second part; one-third to the children of the said Agnes Ritchie, the parties hereto of the third part; and one-third to the children and grandchildren of the said Mrs Catherine Noble or Ritchie, the parties hereto of the fourth and fifth parts, per stirpes; or Whether the parties hereto of the fifth part, as the children of the deceased Isabella Ritchie or Elliot, grandchildren of Mrs Catherine Noble or Ritchie, are not entitled to participate in the said equal third part of the share of residue falling to the children of the said Catherine Noble or Ritchie? (4) Whether the residue, or such part thereof as may be found to be now divisible, is to be held as intestate succession of the said Walter Ritchie; and Whether the parties hereto of the eighth and ninth part are entitled to participate in the same, and if so, to what extent?”

Argued for parties of the second part—Where you have a liferent in favour of two sisters, and there are no words such as “share and share alike,” or words implying division, then, on the death of the one sister, the other one takes by accretion. We maintain that there is no vesting here until the termination of the liferent—( Paul v. Home; Fergus v. Conroy, — and Lord Benholme there). The sisters are conjunct liferenters, Non verbis tantum conjuncti sed etiam re—( Barber v. Findlater).

Argued for parties other than the second party—The vesting took place at the testator's death. [ Lord Justice-Clerk—Upon what do you rest to show that there was vesting?]—( Mackintosh v. Wood). If the liferent ceases upon either the marriage or death of one sister, then on this authority the fee vests a morte testatoris.

Argued for parties of the eighth and ninth part—We claim as heirs-at-law of the testator, on the ground that a portion of the estate is not disposed of by will, and is therefore intestacy— Paterson; Rose; Torrie.

Authorities quoted— Paul v. Home, July 5,1872, 10 Macph. 937, 9 Scot. Law Rep. 594; Fergus v. Conroy, July 13, 1872, 10 Macph. 968; Barbery. Findlater, Feb. 6, 1835, 13 S. 422; and Nov. 23, 1838, 1 D. 94: Mackintosh v. Wood, July 5, 1872, 10 Macph. 933, 9 Scot. Law Rep. 591; Torrie v. Munsie, May 13, 1832, 10 S. 597; Paterson, June 4, 1741, M. 8101; Rose, Jan. 15,1782, Elch. voce Legacy, No. 9.

At advising—