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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wood (Menzies' Judicial Factor) v. Wood and Others [1898] ScotLR 36_116 (25 November 1898) URL: http://www.bailii.org/scot/cases/ScotCS/1898/36SLR0116.html Cite as: [1898] ScotLR 36_116, [1898] SLR 36_116 |
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Page: 116↓
Terms of a bequest to a plurality of persons named which held ( dub. Lord Kinnear) to import an intention that there should be accretion, and to displace the rule of construction laid down in Paxton's Trustees v. Cowie, July 10, 1880, 13 R. 1191.
The circumstances which gave rise to this special case are thus stated in the opinion of Lord Adam—“The late Captain William Menzies left a trust-disposition and settlement and relative codicil dated respectively 4th February 1856 and 12th November 1858, by which he left his whole estate, heritable and moveable, to trustees. The Judicial factor on his estate is the party of the first part. By the thirteenth purpose of the trust he directed his trustees, after the death of the longest liver of his wife and his daughter Emily, afterwards Mrs Simpson, to hold a sum of £10,000, which was liferented by them, in trust for the child or children of his daughter, but in the event, which happened, of his daughter dying without issue, he declared that it should he lawful for her to bequeath the sum of £1000 out of such fund to such person or persons, or for such purposes, as she should by will or codicil direct, and that in the same event the remainder of said fund should be held on the same terms and conditions as the residue of his means and estate. This sum of £1000 which his daughter was thus entitled to bequeath was, by codicil dated 12th November 1858, increased to the sum of £3000.
“The daughter, Mrs Simpson, died without leaving issue, on 8th August 1897. She left a trust-disposition and settlement dated 21st July 1891, by which she conveyed her whole estate to trustees, who are the parties of the second part. By the second purpose of the trust she bequeathed various legacies, and, inter alia, one in these terms—‘To the grandchilden of my brother William Menzies, who are William Bradford Hardinge Campbell Menzies, merchant and farmer at Old Fort, M'Dowall County, North Carolina, United States, America; Miss Sarah Catherine Menzies, Kenneth Campbell Menzies, Henry Charles Menzies, Edward Bruce Menzies, and Annie Beatrice Menzies, all residing at Hickory, North Carolina aforesaid, the sum of two thousand pounds equally among them, share and share alike.’
She further bequeathed legacies to the amount of £1000 to the grandchildren of her brother Kenneth Menzies in the following terms—‘for payment to Miss Jessie Louise Menzies, only child of my nephew Bruce Hardinge Menzies, the sum of £330; and to Frederick James Furlong and William Leo Furlong, sons of my niece who was the daughter of my brother Kenneth Menzies … equally between them, and to the survivor of them after the death of either, the sum of £670.’
After bequeathing a variety of other legacies the deed proceeds—‘That whereas by the settlement or last will and codicil executed by my late father Captain William Menzies, he directed that the sum of three thousand pounds Consols should be at my disposal after my death and he paid to any one I might appoint, therefore in pursuance of that power I direct and appoint that the said sum of three thousand pounds Consols, or the value thereof, shall form part of the fund to be applied in paying the legacies of two thousand pounds and one thousand pounds bequeathed to the grandchildren of William Menzies and the grandchildren of Kenneth Menzies.’
The residue of her estate she directed to be divided equally among the daughters of her aunt Emily, Lady Hardinge, who are the parties of the fourth part.
Miss Sarah Catherine Menzies, one of the six grandchildren of William Menzies above named, predeceased Mrs Simpson, having died unmarried on 22nd May 1896. It is admitted that the legacy of two thousand pounds did not vest until the testatrix's death.”
The opinion of the Court was desired on the following questions, inter alia:—“(1) Did the one-sixth equal share of the said legacy of £2000, which the said late Miss Sarah Catherine Menzies would have taken had she survived the testatrix, lapse by her predecease? or (2) Did said share of legacy accresce to the surviving grandchildren of William Menzies secundus?”
Argued for the first parties—Miss Sarah Catherine Menzies' share of the legacy lapsed into residue, and accretion did not
Page: 117↓
take place. The present case was ruled by the decision in Paxton's Trustees v. Cowie, July 18, 1888, 13 R. 1191, where Lord President Inglis (p. 1197) laid down the principles applicable to a bequest to a plurality of persons sufficiently described for identification. Here the persons to whom the legacy was given were all named, and there was nothing to take the case out of the general rule. The absence of a survivorship clause was significant, especially in view of its presence in the bequest of £670 to Kenneth's grandchildren— Wilson's Trustees v. Wilson's Trustees, November 10, 1894, 22 R. 62, also referred to. Argued for the third parties—This was a bequest to a class, and accretion had taken place. The scheme of the settlement as regarded the legacies was to benefit the grandchildren of her brothers William and Kenneth per stirpes. The Menzies children were named parenthetically, as it were, and not with a view to apportioning the legacy among cartain definite individuals. These considerations were sufficient to distinguish the case from that of Paxton's Trustees, ut supra.
At advising—
The question therefore seems to me to be whether on a sound construction of Mrs Simpson's settlement she intended that the whole of the £2000 legacy should go to the surviving grandchildren of William. And in considering that question we must have regard not only to the particular terms in which the gift of the legacy is expressed, but we must also see whether the prima facie inference to be drawn from these terms is not “controlled or avoided” by the other provisions of the deed.
Now, the gift of the legacy is thus expressed, “to the grandchildren of my brother William, who are William Bradford Hardinge Menzies” (and so on, the six grandchildren being specifically named) “the sum of two thousand pounds equally among them, share and share alike.” Had there been nothing else in the deed to control these words, I should have held that this was a legacy to a plurality of persons named, equally among them, and therefore that there was no accretion. It was argued, however, that it was a legacy to the grandchildren as a class, to be ascertained at the testator's death, and that the sentence beginning “Who are William,” and so on, was merely parenthetical and descriptive of the grandchildren as they then existed.
Standing alone, I should have thought that rather a forced construction of the clause. When we consider, however, the other clauses of the deed, it seems to me that the testatrix did in fact intend that the whole of the £3000 should be divided between the grandchildren of William and the grandchildren of Kenneth in the ratio of £2000 to the one class and £1000 to the other, and that therefore there should be accretion. She directs that the £3000 is to be applied in paying the legacies of £2000 and £1000 bequeathed to the grandchildren of William Menzies and the grandchildren of Kenneth Menzies. There is no other direction as to the disposal of the £3000. I do not see how this direction is to be fulfilled if we are to assume that the share of a predeceasing grandchild lapsed and did not accresce to the survivors.
It is true that in the case of the legacy of £670, part of the £1000, to Frederick and William Furlong, two of Kenneth's grandchildren, it is given equally between them and the “survivor of them,” and had the testatrix used these words as regards the legacy to William's grandchildren, that would have removed all difficulty. No doubt the inference is strong that, having instituted survivors in the one case and not in the other, she did not intend survivorship in the case of William's grandchildren. Nevertheless I think that the testatrix has so clearly expressed her intention that the whole of the £2000 should go to William's grandchildren, that she could not have intended to exclude accretion in the event of the predecease of any of the grandchildren, as otherwise her intention would not be accomplished.
If that be so, then the first question must be answered in the negative, and the second in the affirmative, and it is unnecessary to answer the third and fourth questions.
Page: 118↓
The
The Court answered the first question in the negative and the second question in the affirmative.
Counsel for the First and Second Parties— Johnston, Q.C. — W. C. Smith. Agents— J. A. Campbell & Lamond, C.S.
Counsel for the Third Parties— Guthrie, Q.C. — J. D. Millar. Agents— Duncan & Black, W.S.
Counsel for the Fourth Parties— Napier. Agents— J. A. Campbell & Lamond, C.S.