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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Kilpatrick and Others (Forrest's Trustees) [1884] ScotLR 22_285 (20 December 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/22SLR0285.html Cite as: [1884] SLR 22_285, [1884] ScotLR 22_285 |
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Page: 285↓
A testator directed his trustees to realise his whole estate, heritable and moveable, on the death of the longest liver of his wife and certain other annuitants, and to divide the annual proceeds of the residue equally among his nine nephews and nieces and one grandniece, for their liferent alimentary use only; on the death of any one of these beneficiaries an equal share of the residue was to become payable to the children of such deceased equally upon their attaining majority. In the event of any of these beneficiaries dying without leaving children, or in the event of the children dying without issue before attaining majority, “then the share of my said estates which would have otherwise fallen to such children shall accresce and belong to the survivors of the parties before named in liferent, and to their children in fee, all in the same manner as the proper shares of these parties themselves, and which shares and profits thereof accrescing as aforesaid shall be subject to the same restrictions” as the original shares. The testator's widow survived the other annuitants, and five of the beneficiaries
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predeceased her, two of whom left issue. The widow died in 1878. Another beneficiary, a niece, died after her without leaving issue. Held that this beneficiary's share of the residue accresced and belonged in equal shares to the beneficiaries who survived her in liferent, and their children in fee, to the exclusion of the issue of the beneficiaries who had predeceased her. Observations on Ramsay's Trustees, December 21, 1876, 4 R. 243.
By trust-disposition and settlement dated 16th October 1843, and recorded in the Books of Council and Session 7th December 1844, William Forrest, wright and timber merchant, Paisley, gave, granted, assigned, disponed, and conveyed to John Kilpatrick and the other trustees therein named his whole heritable and moveable estate, in trust for the following purposes— Third, for payment of a free annuity of £15 to each of his sisters, Marion Wills Forrest, relict of William Russell, tailor in Edinburgh, and Richmond Forrest, relict of John Kilpatrick, mason in Edinburgh, and also of a free annuity of £10 to Jessie Middleton, his grandniece, daughter of Robert Middleton, painter in Edinburgh Fifth, the trustees were directed immediately after his death to realise his whole stock-in-trade and other moveable estate, and deposit the proceeds in bank, or as soon as possible lend out the same upon such heritable security as to them should seem expedient, and to apply the annual proceeds of the funds thus to be created, together with the rents of his heritable property, in the first place towards payment of the said annuities and trust expenses, and to accumulate the balance from year to year along with the principal fund until the death of the longest liver of his wife and sisters, when the yearly produce of the then accumulated fund should be held by the trustees for division as after mentioned. The last purpose of the trust-disposition and settlement was in these terms:—“Upon the death of the longest liver of my said wife and sisters, my said trustees shall forthwith sell and dispose of my whole heritable property, and sell and recover any part of my other estates which may happen still to remain outstanding, and the proceeds thereof, together with those portions of my estates previously realised, shall form one general accumulated fund, which, in so far as not already invested, my said trustees shall forthwith invest in some chartered bank or upon such heritable securities as to them shall seem proper, the bonds or other securities for which shall be taken in name of my said trustees or the survivors or survivor of them, or of the trustees to be assumed in virtue of the powers hereinafter given, as in trust for behoof of the parties hereinafter pointed out, and the free annual proceeds of the said accumulated fund after payment of all necessary expenses shall be divided equally amongst Ann Middleton, my niece, wife of George Younger, wright, sometime in Paisley, now in America, Margaret Middleton, also my niece, wife of David Rae, wright, also in the said Jessie Middleton, my grandniece, daughter of Robert Middleton, painter in Edinburgh, Ann Russell, John Russell, James Russell, and Marion Russell, children of the said Marion Wills Forrest or Russell, my Bister, and John Kilpatrick, Richmond Kilpatrick, and Mary Kilpatrick, children of the said Richmond Forrest or Kilpatrick, my sister, all share and share alike, and that during the lifetime of my said nephews, nieces, and grandniece respectively, their said several shares being to be held and applied by my said trustees for the liferent alimentary use only of the said several parties, and being declared not to be subject to alienation by them nor to the diligence of their creditors; and immediately upon the death of any one of my said nephews, nieces, or grandniece, an equal share of the accumulated fund produced from my various estates corresponding to the number of my said nephews, nieces, and grandniece, shall become payable and shall be paid over by my said trustees, as soon as the same can conveniently be realised, to the lawful children of such deceaser equally, upon their respectively attaining majority, the interest of said share to be applied towards their maintenance and upbringing until the same become payable; declaring that in the event of any of my said nephews, nieces, and grandniece dying without leaving lawful children, or in the event of such children dying before attaining twenty-one years of age without issue of their bodies, then the share of my said estates which would have otherwise fallen to such children shall accresce and belong to the survivors of the parties before named in liferent, and to their children in fee, all in the same manner as the proper shares of these parties themselves, and which shares and profits thereof, accrescing as aforesaid, shall be subject to the same restrictions and declarations as are imposed upon the original shares, and which are here held as repeated.”
The testator died on 15th November 1844, survived by his wife who died on 3d November 1878. The following beneficiaries, being the annuitants, predeceased her, viz., Mrs Marion Wills Forrest or Russell, and Mrs Richmond Forrest or Kilpatrick, and Jessie Middleton, who had married a Mr Donald. Of the ten beneficiaries named in the last purpose of the trust the following five predeceased the truster's widow, viz.—(1) Jessie Middleton or Donald, who left four children; (2) Ann Russell, and (3) Marion Russell (who both died unmarried); (4) Mary Kilpatrick, afterwards wife of Hugh Wallace, who left one child, who also predeceased the truster's widow; and (5) Margaret Middleton or Rae, who left three children. After the death of Mrs Forrest, the truster's widow, the heritable estate was sold, and the residue of the trust-estate was divided into seven shares, and the free annual proceeds of five of these shares were paid to Mrs Ann Middleton or Younger, John Russell, James Russell, John Kilpatrick, and Richmond Kilpatrick, wife of John Macwilliam; another share was retained in trust for behoof of David Donald, Charles Donald, Robert Middleton Donald, and James Burt Donald, the children of the said Jessie Middleton or Donald, who were in minority, and the interest thereof paid to their father for their behoof, and the remaining one-seventh share was paid to Mrs Catherine Forrest Rae or Reid, Ann Eliza Rae, and David Robert Rae, the children of the deceased Mrs Margaret Middleton or Rae, who had all attained minority.
On 31st January 1882 another of the beneficiaries named Mrs Ann Middleton or Younger died without leaving issue, and the one-seventh share liferented by her fell to be dealt
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with in terms of the trust-deed. Of the children of Mrs Margaret Middelton or Rae—(Catherine, Ann Eliza, and David Robert)—Catherine, afterwards Mrs Reid, died on 27th June 1881, leaving two children, Annie Middleton Reid and Kate Forrest Reid. This Special Case was presented to determine the manner in which the share of Mrs Younger should be disposed of. The parties were—(1) John Kilpatrick and others, William Forrest's trustees, of the first part. (2) Ann Eliza Rae and David Robert Rae, children of the said deceased Mrs Margaret Middleton or Rae; and Annie Middleton Reid and Kate Forrest Reid, children of the deceased Mrs Catherine Forrest Rae or Reid, who were both in minority, the only other child of the said deceased Mrs Margaret Middleton or Rae, and the four children of the deceased Mrs Jessie Middleton or Donald, and their administrators-in-law, parties of the second part. (3) John Russell and his issue, James Russell, John Kilpatrick and his issue, and Mrs Richmond Kilpatrick or M'William and her issue, parties of the third part.
The parties of the second part maintained that the one-seventh share of the trust-estate of William Forrest, liferented by Mrs Ann Middleton or Younger, fell at her decease to be divided into six equal shares, and that they were entitled to two-sixths thereof, as in right of Mrs Margaret Middleton or Rae and Mrs Jessie Middleton or Donald, to be divided among them proportionally per stirpes.
The parties of the third part maintained that the one-seventh share of the trust-estate fell at the death of Mrs Ann Middleton or Younger to the liferenters named in the trust-deed then surviving in liferent, and to their children in fee, exclusive of the representatives of those liferenters who predeceased Mrs Younger.
The questions of law submitted to the Court were these—“Whether, on a sound construction of the said trust-disposition and settlement, the share of the said trust-estate liferented by Mrs Ann Middleton or Younger, now deceased, accresces and belongs in six equal shares to the parties following, viz.—(1) The issue of the late Mrs Margaret Middleton or Rae, and (2) the issue of the late Mrs Jessie Middleton or Donald, being the parties of the second part; (3) the said John Russell and his issue, (4) the said James Russell, (5) the said John Kilpatrick and his issue, and (6) Mrs Richmond Kilpatrick or M'William and her issue, being the parties of the third part? Or, Whether the said share liferented as aforesaid accresces and belongs in four equal shares to the said parties of the third party respectively, to the exclusion of the parties of the second part?"
Argued for the parties of the second part—The intention of the testator, as gathered from the whole deed, was to divide his estate equally per stirpes among his ten nephews, nieces, and grandniece. His intention with regard to a share which lapsed, as in this case, was to be presumed to be the same. The words “all in the same manner,” &c., showed that the division was to be the same as in the case of the original shares. The word “survivors” was to be read as meaning “others.” If not, then there would be intestacy in the event of the last survivor dying without leaving issue— Ramsay's Trustees v. Ramsay, December 21, 1876, 4 R. 243; Theobald's Law of Wills (2d ed.), 503; Jarman on Wills (4th ed.), ii. 689, 709; Waite, 8 Ch. App. 70; Badger, 8 Eq. 78; Wake, 2 Ch. Div. 348.
Argued for the third parties—The meaning of the word “survivors” and its context were quite unambiguous. In Ramsay's case the Court were of opinion that the meaning of the clause in which the word “survivor” occurred was doubtful, and therefore they looked at the other parts of the deed. Further, they read “survivors” as meaning “others” only to avoid intestacy— Young v. Robertson, July 20, 1860, 22 D. 1527, rev. 4 Macq. 337; Aitkin's Trustees v. Wright, December 22, 1871, 10 Macph. 275; M'Nish, &c. v. Donald's Trustees, October 25, 1879, 7 R. 96; Jarman on Wills, p. 690.
At advising—
And then comes the clause, the legal effect of which we have to determine, “and the free annual proceeds of the said accumulated fund, after payment of all necessary expenses, shall be divided equally amongst Ann Middleton, my niece, wife of George Younger, wright, sometime in Paisley, now in America; Margaret Middleton, also my niece, wife of David Rae, wright, sometime also in; the said Jessie Middleton, my grandniece, daughter of Robert Middleton, painter in Edinburgh; Ann Russell, John Russell, James Russell, and Marion Russell, children of the said Marion Wills Forrest or Russell, my sister; and John Kilpatrick, Richmond Kilpatrick, and Mary Kilpatrick, children of the said Richmond Forrest or Kilpatrick, my sister, all share and share alike, and that during the lifetime of my said nephews, nieces, and grandniece respectively, their said several shares being to be held and applied by my said trustees for the liferent alimentary use only of the said several parties, and being declared not to be subject to alienation by them nor to the diligence of their creditors.” The income of the said fund is thus given in liferent to the ten nephews, nieces, and grandniece of the testator. Then comes the provision as regards the fee—“And immediately upon the death of any one of my said nephews, nieces, and grandniece, an equal share of the accumulated fund produced from my various estates, corresponding to the number of my said nephews, nieces, and grandniece, shall
Page: 288↓
It is explained in the Case that Mrs Forrest, the widow, survived until 1878, until which date the surplus fund was to be accumulated, and it is further explained that certain of the persons to whom a share of the liferent had been given had predeceased her. These were Mrs Russell, Mrs Kilpatrick, and Mrs Jessie Middleton or Donald. Of the ten beneficiaries named in the last purpose five predeceased the widow, viz., (1) the said Jessie Middleton or Donald, who left four children; (2) the said Ann Russell and (3) Marion Russell (who both died unmarried); (4) the said Mary Kilpatrick, afterwards wife of Hugh Wallace, at present in Australia, who left one child, who also predeceased the truster's widow; and (5) the said Mrs Margaret Middleton or Rae, who left three children. The result seems to be this, that there were five survivors of those to whom a liferent had been given, and there were the issue of one predeceasing niece, and the issue of the grandniece. In these circumstances it is explained that after the death of Mrs Forrest, the truster's widow, the heritable estate was sold, and the residue of the trust-estate was divided into seven shares, and that the free annual proceeds of five of these shares have been paid to each of the said Mrs Younger, John Russell, James Russell, John Kilpatrick, and Richmond L. Kilpatrick, now Mrs M'William; that another share was retained in trust for behoof of the said David Donald, Charles Donald, Robert M. Donald, and James B. Donald, the children of the grandniece, who are in minority, and that the interest thereof has been paid to their father for their behoof, and the remaining one-seventh share was paid to the said Mrs Catherine Forrest Rae or Reid, Ann Eliza Rae, and David Robert Rae, the children of the said deceased Mrs Margaret Middleton or Rae, who had all attained majority. Since the death of the widow other two of the liferenters have died, and one of these, Mrs Younger, died in 1882, without leaving issue. The question arises as to what is to become of her liferented share. The question that arises is stated in these terms—The parties of the second part maintain that the one-seventh share liferented by Mrs Younger fell at her death to be divided into six equal shares, and that they are entitled to two-sixths thereof, as in right of Mrs Rae and Mrs Donald, to be divided among them proportionally per stirpes. The parties of the third part maintain that the said one-seventh share fell at the death of Mrs Younger to the liferenters named in the trust-deed then surviving in liferent, and to their children in fee, exclusive of the representatives of those liferenters who predeceased Mrs Younger.
So that the question really is this—the Court having to deal with Mrs Younger's share, and she having died in 1882—On the one hand, the survivors of the liferenters claim that the liferent of Mrs Younger's share belongs to them alone, and their children maintain that the fee of it belongs to them alone. But the parties of the second part maintain that though their parents predeoeased Mrs Younger, yet they are entitled each to take a sixth share of the fund liferented by her.
I have come to the conclusion that the contention of the second parties cannot be sustained, and that the right to the share which Mrs Younger liferented is by the provisions of the deed given to those of the liferenters who survived her in liferent, and to them alone, and to their children in fee. The words upon which this question turns relate to the bequest in regard to accrescing shares. It is only necessary to say of what precedes that the testator has given a liferent of a tenth share to each of his nephews, nieces, and grandniece, and the fee to their children on the decease of the parent. This bequest is made under certain conditions. As to the liferent, it is to be alimentary and not subject to alienation, and as regards the fee, it is only to vest on the children's attaining majority. Then occurs the clause as to the share of liferenters dying without issue—“Declaring that in the event of any of my said nephews, nieces, and grandniece dying without leaving lawful children, or in the event of such children dying before attaining twenty-one years of age without issue of their bodies, then the share of my said estates which would have otherwise fallen to such children shall accresce and belong to the survivors of the parties before named in liferent, and to their children in fee, all in the same manner as the proper shares of these parties themselves, and which shares and profits thereof, accrescing as aforesaid, shall be subject to the same restrictions and declarations as are imposed upon the original shares.”
I think it cannot be disputed that if the language here used is to be taken in its ordinary and natural signification, the plain result is, that while the original shares are given to persons named and their children in fee, in regard to accrescing shares, these are given, not to the families of the whole ten persons, but to the survivors of the persons named in liferent and to their children in fee. The words are quite unambiguous—“The share of my said estates which would have otherwise fallen to such children shall accresce and belong to the survivors of the parties before named in liferent, and to their children in fee.” It is said, however, that the Court is to interpret this word “survivor” as meaning something different from its ordinary signification, and that because
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I see no reason to doubt the soundness of that decision. If this had been a question in regard to the last of these liferenters, I should have been disposed to hold that, taking the deed as a whole, intestacy was excluded. And accordingly I think the decision in the case of Ramsay is not impugned by what we do here.
As to the English authorities, I think they do not favour the argument of the second parties. There have been a long series of cases in England, many quite irreconcileable with each other, in the earlier of which the Courts, seeking to carry out the supposed intention of the testator, have construed the word “survivor” as meaning “other.” But it was found that this was productive of looseness, confusion, and conflicting decisions, and as I read them the cases come to this, that unless there be something in the other parts of the deed to indicate that survivor is to be taken as meaning something else than its natural signification it is to be taken in that signification. I refer to Jarman on Wills, p. 689, and the result of what is there stated is, I think, that when the word “survivor” is unexplained by other parts of the deed it is to receive its literal meaning. That rule, however, has been relaxed in England in one class of cases, of which the cases of Wake and Waite are very good types. In those cases, following on a gift such as we have here, with a clause providing for the death of any of the liferenters without issue, there comes a gift over providing that in the event of everyone of the legatees dying without issue, then the whole succession is to go to the heirs of the survivor, whom failing to another class of persons named or designed. In that case the Courts in England have held that the effect of the destination-over will be not only to prevent intestacy, but also to read into the deed words sufficient to sustain such a claim as is made here. That result is attained in this class of cases naturally because of the gift over. And if the gift over is not present this result does not take place, and the word “survivor” has its natural meaning. Here there is no gift over, and so we do nothing in conflict with those English decisions. If a case arises in which we have a destination-over, it may be for us to consider whether that must control the destination to survivors.
I am not satisfied that even in that case we should be able to read the word “survivors” as
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I therefore think that the question should be answered in terms of the second alternative, and that the share in dispute accresces and belongs, in four equal shares, to the parties of the third part, all in the same manner as their proper shares, and subject to the same restrictions and declarations.
By his trust-disposition and settlement the testator directed his trustees to pay to his widow the liferent provision conceived in her favour by their antenuptial marriage-contract, and to pay certain other small annuities, and then, in the fifth place, the trustees were directed to realise his whole stock-in-trade and moveable estate, and invest the proceeds. The annual proceeds of this fund, together with the rents of his heritable property, were to be applied, in the first place, towards payment of the annuities and trust expenses, and the balance was to be accumulated from year to year, along with the principal fund, until the death of the longest liver of his wife and sisters, when the yearly produce of the accumulated fund was to be held by the trustees for division as after mentioned.
The last purpose of the trust-deed contained a direction to the trustees to sell the whole of the testator's heritable property, and to sell and recover any part of his other estate then outstanding, upon the death of the longest liver of his wife and sisters, and that the proceeds thereof, together with those portions of his estates previously realised, should form one general accumulated fund, and that the annual proceeds of this accumulated fund should be divided equally among his nine nephews and nieces and one grandniece. Then followed this direction—“And immediately upon the death of any one of my nephews, nieces, or grandniece, an equal share of the accumulated fund produced from my various estates, corresponding to the number of my said nephews, nieces, and grandniece, shall become payable and shall be paid over by my said trustees, as soon as the same can conveniently be realised, to the lawful children of such deceaser equally upon their respectively attaining majority, the interest of said share to be applied towards their maintenance and upbringing until the same become payable,” &c.
Apparently the state of those interested in the estate is this—The widow died in 1878, predeceased by the other annuitants, and therefore the last purpose of the trust-deed came into operation. At that time, the date of the widow's death, out of the ten beneficiaries mentioned in the deed, three had predeceased without issue, and two had predeceased leaving issue. Then Mrs Younger, another of the beneficiaries, died on 31st January 1882 without issue, so that there were four nephews and nieces left.
The question here is, whether Mrs Younger's share is to go to the surviving nephews and nieces, or whether the issue of the predeceasing niece and grandniece are entitled to part of it?
It appears to me that the construction which is to be put upon the terms of the last purpose of the trust-deed is, in the event which has occurred, quite clear. The words are—“Declaring that in the event,” &c.—[ reads as above]. That is the contingency which has arisen, for Mrs Younger died without leaving issue, and it is apparent from these words that her share must accresce and belong to the third parties, who are the survivors, in liferent and their children in fee. The second parties did not contend that there was any ambiguity in the words themselves, or deny that the word “survivors” meant survivors at the death of Mrs Younger, but they suggested that we were not to give the words their literal and natural meaning, because it was to be presumed that the intention of the testator, which was to be gathered from the general purpose of the deed, was to favour these families equally, and that we must give effect to the general intention of the deed. I quite admit that if there had been any doubt as to the meaning of the word “survivors” it would have been most important to look to other parts of the deed for the general intention of the testator, but I do not see that the meaning of the word is ambiguous.
The testator had before him the contingency which has occurred, and he provided for it. He could not have used more appropriate words to give effect to the contention of the third parties. But in order to give effect to the contention of the second parties it would be necessary to read into the clause, “and to the issue of such of my nephews, nieces, or grandniece as shall have predeceased.” When the meaning of the words is so plain I am not disposed to override the meaning on a suggestion of what is said to have been the general intention.
It was also said that if effect was given to the contention of the third parties, then in the event of the last survivor dying without issue intestacy would result. That is not the question before us. There are very weighty reasons given in Ramsay's case why intestacy should be prevented. But that is not the question here, and the words having a clear meaning, I think they should receive that meaning.
Lord Shand has already pointed out the distinction between the case of Ramsay, the cases of Wake and Waite, and the case we have here. In the cases of Waite and Wake the question was as to the effect of an ultimate gift over. In Ramsay the question was between intestacy and testate succession. The question here is how to read the word “survivor,” and I do not think that in deciding this case as we do that we are at all trenching on the decision in Ramsay's case.
The ground of judgment there, as put by Lord Gifford, is, in my opinion, quite sound. The English cases appear to me to proceed upon the same principle. In Wake's case the question arose upon the words “in case all of my said children shall die without leaving issue, then in trust for the heirs, executors, and administrators of the survivor,” and was whether the issue of the children or the heirs of the survivor
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The only difficulty is as regards the case of Ramsay's Trustees (the English cases I do not enter into), but I think that it was in order to avoid creating intestacy that the Second Division adopted the construction of survivors as meaning others. In this case there is no specialty like that, and I cannot read others into the deed. I therefore agree that the second alternative should be answered in the affirmative.
The Court pronounced this interlocutor:—
“Find and declare that on a sound construction of the trust-disposition and settlement of William Forrest designed in the Special Case, the share of his trust-estate liferented by Mrs Ann Middleton or Younger, designed in the Special Case, now deceased, accresces and belongs in four equal shares to the parties of the third part respectively, to the exclusion of the parties of the second part, and that in liferent and fee, all in the same manner as the proper shares of these parties themselves, and subject in the same restrictions and declarations as are imposed upon the original shares: Find that the expenses of all the parties, as the same may be taxed by the Auditor, shall be paid out of the trust-estate, and decern.”
Counsel for First Parties— Fraser. Agent— F. J. Martin, W.S.
Counsel for Second Parties— H. Johnston. Agents— Henderson & Clark, W.S.
Counsel for Third Parties— Lorimer. Agent— F. J. Martin, W.S.
