Scottish Court of Session Decisions

Alexander Morrison, died on 18th April 1860, leaving a trust-disposition and settlement whereby he conveyed his whole estate, heritable and moveable, to trustees. After providing for payment of certain annuities, the testator directed that his trustees should divide among and pay to his children, share and share alike, the remainder of the income arising from his means and estate, during their respective lifetimes, and for their liferent use allenarly. He further provided as follows—“ Seventhly, Upon the death of any of my children leaving lawful issue, that portion of my means and estate which was liferented by him or her shall be paid, or disponed, or assigned, to his or her children equally among them upon their attaining the age of twenty-one years or being married, whichever of these events shall first happen respectively; and until such event my trustees shall apply the interest or income arising from their respective portions of my estate or such part thereof as my trustees shall consider necessary for their maintenance and education; and declaring that in the event of any of my children dying without leaving lawful issue, his or her share of the liferent of my means and estate shall thereafter be divisible and payable equally among my surviving children and their issue in liferent and fee respectively, in the same manner and subject to the same restrictions as are above specified in regard to the provisions in favour of my children and their issue generally.”

The testator was survived by several children. Of these, three daughters—Mrs Janet Morrison or Collins, Mrs Mary Dalgleish Morrison or Ward, and Mrs Annie Campbell Morrison or Lacy—died in 1877, each leaving issue; James died without issue in 1885; Adam, leaving issue, in 1887; Mrs Hannah Morrison or Barr, without issue, in 1890; and Mrs Margaret Morrison or Lang was then left as sole survivor of the testator's children.

In 1892 the trustees under the testator's settlement brought an action of multiplepoinding for the settlement of certain questions which had arisen as to the distribution of his estate. Claims were lodged for the issue of Mrs Collins and of each of the other children of the testator who had deceased leaving issue, and for Mrs Lang and her family.

The following question was raised—“Whether the issue of those children of the testator who had survived him, but had predeceased James Morrison and Hannah Barr respectively, were excluded from participation in the fee of the shares liferented by the said James Morrison and Mrs Barr respectively?”

On 22nd November 1892 the Lord Ordinary ( Low) pronounced an interlocutor wherein he found—“(1) That the said James Morrison died without issue on 25th November 1885, and that of the share of the testator's estate liferented by him one third accrued to Adam Morrison and his issue in liferent and fee respectively, one third accrued in liferent to Mrs Hannah Morrison or Barr, and one third accrued to the claimant Mrs Margaret Morrison or Lang, and her issue in liferent and fee

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respectively; (2) that the said Mrs Hannah Morrison or Barr died without issue on 8th January 1890, and that the entire share (both original and accruing) of the testator's estate liferented by her, but under deduction from the original share of advances made by the truster to her, accrued to the claimant Mrs Margaret Morrison or Lang and her issue in liferent and fee respectively.” …

“ Opinion.—The first and perhaps the most important question raised in this case is upon the construction of the seventh purpose of Alexander Morrison's trust-disposition and settlement.

The purpose provides for the event of the death of any of the testator's children who survive him and come into the enjoyment of the liferent provided to them in the settlement. If a child dies and leaves lawful issue, the portion liferented by that child is to be paid to the issue. If a child dies without leaving lawful issue it is declared that ‘his or her share of the liferent of my means and estate shall thereafter be divisible and payable equally among my surviving children and their issue in liferent and fee respectively, in the same manner and subject to the same restrictions as are above specified in regard to the provisions in favour of my children and their issue generally.’

The words there used are quite distinct. The share of a child dying without issue is to be divided between the surviving children and their issue. The issue of a predeceasing child are given no right, and although it may be difficult to understand why the issue of children who survived the death of a child who left no issue should be preferred to the issue of a child or children who predeceasd that event, the words which the testator has used must be given effect to according to their fair and natural meaning. Further, I think that this case is ruled by the judgment of the First Division in Forrest's Trustees v. Rae, 12 R. p. 389.” …

The children of Mrs Ward and others reclaimed, and argued—The apparent intention of the testator was that his estate should be equally divided among his children and their issue in liferent and fee respectively. So far as the fee of the accruing shares were concerned, this intention could only be effectuated if “surviving” were read as “other.” On the opposite construction there might have been partial intestacy in the event of the last surviving liferenter dying without issue. On the whole the most reasonable construction was to read “surviving” as “other”— Ramsay's Trustees v. Ramsay, December 21, 1876, 4 R. 243; Waite v. Littlewood, 1872, L.R., 8 Ch. App. 70; Wake v. Varah, 1876, L.R., 2 Ch. Div. 348.

Argued for the claimants Mrs Lacy and others—The presumption was that the words “dying” and “surviving” referred to the same period, and so far at all events as the liferent interests were concerned, “surviving” could not be referred to any period but the death of the child which set tree the liferent for distribution. In the case of the liferenters therefore “surviving” could not be read as “other,” and the inference was that it should not be so read in the case of the fiars either. The plain grammatical construction and natural sense of the words used by the testator were against the reclaimers' interpretation, and the case fell under the rule of Forrest's Trustees v. Rae, &c., December 20, 1884, 12 R. 389; and Hairsten's Judicial Factor v. Duncan, July 14, 1891, 18 R. 1158. The supposed case of intestacy applied only to the event of the last surviving liferenter's death, when the purpose of the clause would be exhausted. Perhaps in that case “surviving” might be read as “other.”

At advising—