Scottish Court of Session Decisions

Lord Young—I am of the same opinion, I confess without much difficulty, although I appreciate Mr Mackay's argument against the view I have arrived at. I shall read the clause trying to omit the words which I consider superfluous. “I direct that the residue of my funds be divided among the children of my cousins, share and share alike, on each of them attaining the age of twenty-one years.” I omit as superfluous “lawfully begotten or who shall be lawfully begotten.” I think it is a pity that such words are ever put in either by conveyancers or by parties making their own wills. We are quite familiar with a testator making a bequest in favour of his own children, and the words will naturally be inserted “in favour of my children lawfully begotten or who shall be lawfully begotten by me.” Of course in such a case no question of this sort could arise. It is just the familiar use of that expression that is the explanation of the words occurring here.

I read the bequest as being one made to the children of the testator's cousins on each of them attaining the age of twenty—one. Now, I think the presumption arising from that is that the period of distribution,—the period of vesting—is the testator's death. For considerations of convenience almost amounting to necessity we take the first term occurring within a reasonable interval after the testator's death for the ingathering and distribution in the sense of payment of his estate, but the period of distribution, in the sense of the period at which the rights of parties under the will are ascertained and vest, so that on their decease they will be subject to their debts and deeds, and pass according to their wills, is, in the absence of anything to the contrary, the testator's death. Therefore a direction to divide the testator's estate implies, in the absence of anything to the contrary, that it vests at the testator's death. I think the meaning of the will is that, while the residue vested at the testator's death among the children of his three cousins then alive, the executors are to withhold payment till each child attains twenty-one years of age. The estate vested a morte testatoris, and the duty of the executors was at that date to divide the estate into as many parts as there were children then in existence. A child coming into existence after the testator's death has no more right to a share of the estate than a child who predeceased the testator.

Lord Adam—I am of the same opinion. I confess that there are certain words in the deed which point to a different conclusion, viz., “who shall be lawfully begotten.” In interpreting a will of this kind we are not to suppose that words are put in without a definite meaning. Exfacie, if the bequest vests a morte testatoris, the words I have quoted are superfluous; if vesting is to take place at a later period than the death, then this expression has a meaning, viz., “who shall be lawfully begotten before payment.” I also agree that a direction to divide postpones vesting till all the beneficiaries can be ascertained. But there are here insuperable difficulties to giving effect to Mr Mackay's contention. In the first place one division is contemplated by the deed. If you read the clause as meaning that the residue was to be divided on each of the children attaining majority, this would lead to any number of divisions. That is, I think, an impossible reading. It was suggested by Mr Mackay that there had been introduced into our law an arbitrary rule of the English law, which holds that under a will of this kind the estate would vest in those children who were alive when the eldest attained majority. But Mr Mackay admitted that we could not give effect to this rule if we were to carry out the express words of the deed. I do not see how in such circumstances we can give effect to an arbitrary rule of English law. It is clear that there must be one division and one only.

In the second place, there must be a division in which all the children must share alike. It has not been shown to be possible to carry out this direction except by holding that vesting was a morte testatoris, and that the division was to take place at that time. Vesting a morte testatoris is the only reading which makes one division possible.

If the intention of the testator can only be carried out by holding that there was vesting a morte testatoris, we must so hold. I am therefore of opinion that the estate vested a morte testatoris, and must be divided among the children then alive.

Lord Rutherfurd Clark and Lord Trayner were absent.