Scottish Court of Session Decisions

The late William Edward, surgeon, Letham, Forfar, died there upon 6th August 1889, leaving the following trust-disposition and settlement, dated 13th September 1888, and duly recorded.

“ Letham, 13 th September 1888.

This is the will of William Edward,

surgeon.

1. Charles Smith Edward, my brother James' son, is to get nothing, not to be allowed to enter my house, that's him settled.

2. John Young, my sister Ann's son, is to get £5; William Young £5; Jane Young, their sister, £5.

3. John Ogilvy, stationmaster upon the Caledonian Railway, £20; Jessie Ogilvy £30 yearly, to help to bring her family up and educate them, and also money to college her three sons; and John Ogilvy money to college one son, the amount each year not to exceed £30 for each of them.

It has taken me hard work fifty years to make the money that I have, and I want it kept for another fifty years, and what is over expenses paying each year added twice a-year to the stock. The estate at present is as follows—£3400 in the Royal Bank at Forfar, £2000 in the Bank of Scotland at Forfar, £2600 in the Commercial Bank at Forfar, all upon deposit-receipt, besides my book accounts, pony, and furniture. I appoint Robert Bruce, agent in the Commercial Bank at Forfar, and John Ogilvy, stationmaster, and Jessie Ogilvy, his sister, and Jane Edward, my sister, my trustees. The trustees always to be four. Haldane Edward Fyfe, if he come up well, to be appointed one at twenty-one years. Everything here is my own, and if any person enter objections beat them off.

“ William Edward, Surgeon.”

“It requires no witnesses. See left side.”

[ On left side.]—“After the fifty years is past, the money (sic) to purchess an estate in my name that cannot be sold nor indebted, and the income from it, after paying expenses, to be divided amongst those mentioned in my will yearly.

William Edward, Surgeon.”

The deceased Dr William Edward had three sisters, Innes Edward or Ogilvy, Annie Edward or Young, and Jane Edward, of whom only the last survived him. He also had one brother, James Edward, who predeceased him. Mrs Innes Edward or Ogilvy left two children, John Ogilvy and Jessie Ogilvy or Fyfe (two of the trustees). Mrs Annie Edward or Young left three children, the said John Young, William Young, and Jane Young or Adam. James Edward left one child, the said Charles Smith Edward. These were all the nearest of kin of the testator.

The four trustees, after having accepted office and assumed the administration of the estate, found it necessary to bring—as pursuers and real raisers—an action of multipleponding in order to have the rights of competing claimants to the estate determined by the Court.

The trustees claimed “to retain the residue of the estate forming the fund in medio until 6th August 1910 (being the period to which accumulation of the interest

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was by the Thellusson Act restricted), the free balance, after paying expenses of administration, and providing for the legacies in deceased's will, being added to the capital at the two terms of Whitsunday and Martinmas in each year.”

Charles Smith Edward claimed “to be ranked and preferred to one-fourth of the whole estate; or to be ranked and preferred to one-fourth of the whole estate after paying or providing for the special pecuniary legacies left to the Youngs and the Ogilvys under heads 2 and 3 of the will.” And pleaded—“(1) The said will being contrary to the provisions of the Thellusson Act and illegal, or otherwise void from uncertainty, or otherwise not habile to convey any part of Dr Edward's estate, this claimant should be ranked and preferred in terms of the first branch of his claim. (2) Separatim—The said will being only effectual so far as the special legacies in heads 2 and 3 are concerned, this claimant should be ranked and preferred in terms of his alternative claim.”

Miss Jane Edward lodged a similar claim and similar pleas-in-law.

Messrs John Young and William Young maintained that on a sound construction of the will of the deceased William Edward he thereby directed his trustees to purchase an estate, and to entail it for behoof of the five persons taking benefit under said will, viz., the claimants, and Jane Young, John Ogilvy, and Jessie Ogilvy. The said directions, however, being defective, the claimants contended that the whole of the testator's means, under burden of the annuities conferred by the will, and under deduction of the special legacies thereby given, fell to be paid or conveyed equally among the said five persons. Alternatively, the claimants contended that the trustees were bound to hold and accumulate the fund in medio as directed by the will for a period of twenty-one years, and thereafter to divide the estate among the said five persons, or their issue as coming in place of them, on the footing that the will truly imported a gift of the fee of the said estate among them; or, in any event, that the trustees were meantime bound to give effect to the testator's direction to accumulate for a period of twenty-one years, leaving the questions as to the disposal of the fund and the income arising therefrom to be determined at the end of said period, and claimed accordingly.

Mrs Jane Young or Adam lodged alternative claims (1) on the footing that the will was void from uncertainty; and (2) under the will. John Ogilvy and Mrs Jessie Ogilvy or Fyfe each claimed (1) their provisions under the second head of the will; and (2) to succeed ab intestato to one-eighth of the residue, in respect that the bequest of residue was void from uncertainty.

The Lord Ordinary ( Wellwood) upon 1st November 1890 pronounced the following interlocutor:—“Finds that the pursuers and real raisers, trustees of the deceased Dr William Edward, are bound to implement and satisfy the provisions in the second and third heads of the will, and to retain the residue of the trust-estate until the 6th August 1910, being twenty-one years from the date of the truster's death, the free balance, after paying expenses of administration and providing for the said special legacies, being added to the capital at the two terms of Whitsunday and Martinmas in each year: Further, finds that it is premature to determine in hoc statu the rights of parties in the capital and interest of the said residue: Therefore sustains the claim stated for the said pursuers, and repels the remaining claims in the competition in so far as inconsistent with the foregoing findings: Finds the claimants entitled to their expenses in the competition out of the funds of the trust-estate, &c., and grants leave to reclaim.

Opinion.—It is to be regretted that the parties have not agreed to a division of the fund in medio, because I am unable to hold that the testator's directions as to the disposal of the residue of his estate are so radically bad from uncertainty as to warrant an immediate division of the fund. The will contains a very clearly expressed direction to accumulate the free income of the estate for a period of fifty years; the reason assigned being that it had taken the testator fifty years to make the money and that he desired it kept until it reached a sum sufficient to purchase a landed estate. This direction, so far as accumulation is concerned, can only receive effect for twenty-one years, the time limited by statute. But, subject to that restriction, the direction must receive effect unless the directions as to the ultimate disposal of the fund are so inextricable and uncertain as to lead to the bequest being annulled.

The directions are as follow:—‘After the fifty years is past the money to purchase an estate in my name, that cannot be sold nor indebted, and the income from it, after paying expenses, to be divided amongst those mentioned in my will yearly.’

Now these directions are confused and incorrectly expressed; but it is pretty clear that what was in the testator's mind was, that he wished his trustees to purchase a landed estate and settle it by deed of strict entail, and that the heirs of entail should adopt his name. Of course the direction to entail (if it can be so read) cannot receive effect, because no tailzied destination, and indeed no destination at all, is given. There still, however, remains a direction to purchase an estate with the residue.

So much as to the subject. As to the objects of the bequest, they are described as ‘those mentioned in my will.’ It was strongly maintained by all the claimants, except John and William Young, that there was radical uncertainty as to the persons referred to in these words. The words certainly need construction, but I do not see any insuperable difficulty in putting a reasonable construction upon them. I do not wish to prejudge any questions which may hereafter arise, but I may say, in illustration, that prima facie there is a good deal to be said for the contention of the claimants John and William Young.

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They maintain that by ‘those mentioned in my will,’ the testator meant those beneficially interested under it, namely, his nephews and nieces (five in number), to whom he left specific bequests; that the expression clearly did not include his nephew Charles Smith Edward, who is disinherited in very emphatic terms; and that it would be unreasonable to hold the words to refer to the persons named as trustees, other than those who are already named as legatees. The remaining trustees other than those already mentioned as legatees are Robert Bruce, agent in the Commercial Bank at Forfar, who was not apparently connected with the family, and Jane Edward the testator's sister. As to the latter, there would have been much to say in favour of its being intended that she should get a share of the residue, had it not been that the time contemplated for payment cannot in human probability arrive during her lifetime. I do not say that this argument should prevail, but it is certainly stateable and not extravagant.

There is more difficulty as to the extent of the interest which the persons favoured are to take. It may be that when the time for decision comes it will be held that the testator died intestate quoad the capital of the residue. But assuming that it is clear who the persons are who are described as ‘those mentioned in my will,” the will says that they are to receive at least the free yearly income of the estate when purchased.

I therefore think that the truster's directions to accumulate must receive effect in so far as allowed by law, and at the expiry of twenty-one years from the date of his death it will fall to be decided who are then entitled to the income and capital of the estate. It may be that even then the trust may not be brought to a close; but as a question will then arise as to the disposal of the income which can no longer be legally accumulated, it is not necessary at present to look further ahead.

This being my opinion, I think the trustees must continue to hold the fund for twenty-one years, accumulating the free income, and in the meantime satisfy the provisions of the second and third heads of the will.”

Charles Smith Edward reclaimed, and argued—Saving the legacies there was intestacy, for the will was inextricable. The ruling idea was accumulation for fifty years, but accumulation of interest beyond twenty-one years was forbidden by the Thellusson Act. As the testator's directions could not be given effect to in toto, there was no reason for accumulation at all. There were no directions instructing a valid entail. There was no disposal of capital. There were no persons.” mentioned in the will” except as legatees—Thellusson Act 1800 (39 and 40 Geo. 111), c. 98, and Hargreaves' Treatise thereon; Griffiths v. Vere, November 9, 1803, 9 Vesey 127; Strathmore v. Strathmore's Trustees, March 23, 1831, 5 W. and S. 170; and case of M'Culloch v. M'Culloch, November 28, 1752, reported in note on p. 180; Mason v. Skinner, March 6, 1844, 16 Jur. 422; Ogilvie's Trustees v. Kirk-Session of Dundee, July 18, 1846, 8 D. 1229; Mackenzies v. Mackenzie's Trustees, June 29, 1877, 4 R. 962; Maxwell's Trustees v. Maxwell, November 24, 1877, 5 R. 248.

Argued for John Young and William Young — The reclaimer had been plainly and emphatically disinherited, and had no right to any part of the estate. The testator had evidently an entail in his mind, but whoever might be found ultimately entitled to the estate and its income, there was an unambiguous direction to accumulate which must be given effect to although statute limited the time to twenty-one years. In any case, the five persons beneficially mentioned in the will were clearly those whom alone the testator intended to benefit.

At advising—