Scottish Court of Session Decisions

Mr James Young primus died in 1864, leaving a trust-disposition and settlement, dated 12th September 1861, and relative codicil dated 13th April 1864. By the second and third purposes of his trust he provided annuities of £100 and £50 to his wife and to his eldest son James Young secundus respectively. By the fifth purpose he directed “That my trustees shall from time to time realise and convert into money my whole estates and effects, heritable and moveable, not hereby specially disposed of, and after providing for the annuities before written, shall hold and apply the prices and produce thereof, and whole residue and remainder of my estate, for the use and behoof of my younger children, the said Janet Edmonstone Young, Margaret Primrose Young, and John Primrose Young, and such other child or children as may be procreated of my body, equally among said children, share and share alike, under the burdens and conditions following, videlicet:—The share falling to the said Janet Edmonstone Young, my eldest daughter, shall be held by my trustees, or invested by them in their names for behoof of the said Janet Edmonstone Young in liferent during all the days and years of her life, and shall belong to her issue in fee, equally among such issue per stirpes to the extent and on the condition after provided in the case of the shares of my whole younger children.… The share falling to the said Margaret Primrose Young, and to any other daughter or daughters to be procreated of my body, shall be held by my trustees, or invested by them in their names, for the use of such daughter or daughters in liferent, and shall belong absolutely and be paid or conveyed to the issue of such daughter or daughters equally among such issue per stirpes in fee, but that only as after provided in the case of the shares of my whole younger children: Declaring that the free interest or annual proceeds of the share or shares falling to the said Margaret Primrose Young, and to any other daughter or daughters to be procreated of my body, or to others through the decease of any of said daughters, shall be paid over half-yearly at the terms of Whitsunday and Martinmas to the said Margaret Marshall Primrose Young, my wife.… And the share or shares falling to the said John Primrose Young, and to any other son or sons to be procreated of my body, shall be held or invested by my trustees in their names, for the liferent use of the said Margaret Marshall Primrose or Young, so long as she survive me and remain unmarried; and on her decease or second marriage the said share or shares shall become vested interests in my said son or sons, and shall be payable to him or them on his or their respectively attaining the age of twenty-five years, till which time or times the free interest or annual proceeds thereof shall be administered for his or their behoof by my trustees.… And I direct my trustees, in the event of the death of any of my younger children leaving lawful issue, and having at the time of such decease a share or interest in my estate, to pay or assign and convey such share or interest to and in favour of all the lawful children of such deceasing child who shall attain the age of twenty-one years, equally between or amongst them, share and share alike, if there be more than one; … it being hereby expressly declared that the share of any of my younger children so dying leaving lawful issue shall be divided equally among his or her issue attaining said age of twenty-one years, and failing such issue attaining the said age of twenty-one years, I direct and appoint that the share and interest of such of my younger children deceasing shall form part of my estate, and shall belong to my other younger children or their issue attaining said age, equally among them per stirpes; declaring also that the liferent right of each of my daughters shall be exclusive of the jus mariti of any husband she may marry, and shall not be assignable or affectable by her or his deeds or debts, or by the diligence of her or his creditors, but shall be an alimentary provision for her own personal use and behoof.”…

James Young primus was survived by his widow and by the four children mentioned in his settlement. Of the children, James Young secundus died in 1876 survived by his widow Mrs Margaret Young or Wyper and three children, viz., James Young tertius, Mrs Helen Young or Halliday, and Mrs Marion Young or Tud-hope. John Primrose Young, the truster's younger son died in pupilarity on 29th October 1866. Margaret Primrose Young died on 22nd January 1870 in minority and unmarried. Mrs Janet Edmonstone Young or Moodie, the truster's other daughter, died without issue in 1899. Mrs Young, his widow, died in 1869.

After the death of Margaret Primrose Young a special case was submitted to the Court for the purpose of determining the question of the disposal of the shares of residue bequeathed to her and to John Young, and on 19th May 1870 the First Division found and declared that “The shares of the residue of the trust estate of the deceased James Young provided to his son John and his daughter Margaret have, by reason of the death of John in pupilarity and the death of Margaret without issue, fallen into and become part of the residue of the trust estate to be administered and disposed of by the trustees in the manner provided with respect to Mrs Moodie's original share, for behoof of Mrs Moodie in liferent, exclusive of her husband's jus mariti, and of her children in fee.”

The case is reported ante, vol. vii, p. 482.

By trust-disposition dated 27th February 1872, James Young secundus, on a narrative of the terms of the trust-disposition of James Young primus, and of the deaths of John Young in pupilarity and

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of Margaret Young in minority and unmarried, and further, on the narrative that the interest of Janet Edmonstone Young in the residue of the estate of James Young primus was limited to the free income thereof, which was an alimentary provision for her own behoof, “and that in the event of the said Janet Edmonstone Young deceasing without leaving issue the whole purposes of the said trust-disposition and codicil will have been implemented and the residue of the said estate will fall and belong to me or to my children as undisposed of and intestate succession of my father the said deceased James Young, subject always to the payment of the life-rent annuity provided in my favour and before refered to,” disponed to trustees “the whole residue of said estate, heritable and moveable, to which I shall succeed in the event of my being predeceased by the said Janet Edmonstone Young without issue.” The purposes of the trust were to pay over the income to the truster for his liferent use allenarly; to pay to his wife in the event of his predeceasing her the whole free income for her liferent use allenarly; and on the decease of the survivor of himself and his wife to administer the income for behoof of the surviving children until the youngest should attain the age of 25, when the whole of the residue was to be equally divided among the children. Mrs Moodie did not predecease James Young secundus, and enjoyed the liferent of the whole residue of the estate till her death in 1899. She left a trust-disposition and settlement whereby she bequeathed the residue of her estate to James Young tertius, bis two sisters Mrs Halliday and Mrs Tndhope, and to Mrs Jane Moodie or Jackson.

Mr David Guthrie, C.A., Glasgow, was appointed judicial factor on Mrs Moodie's estate.

Questions having arisen as to the disposal of the residue of the estate of James Young primus, an action of multiple poinding was raised in name of his trustees as nominal raisers. Claims were lodged (1) by James Young, eldest son and heir-at-law of James Young secundus, (2) by David Guthrie the judicial factor on Mrs Moodie's estate, and (3) by Mrs Margaret Lamont Young now Wyper, widow of James Young secundus, sole surviving trustee under his trust-disposition, with consent and concurrence of (1) herself as an individual, (2) Mrs Halliday and her husband, and (3) Mrs Tudhope and her husband.

The claimant James Young maintained (4) That upon the death of Mrs Moodie without issue the whole estate liferented by her fell into intestacy, and that the same, in so far as it consisted of heritage at the date of the death of James Young primus, now belonged to him as heir-at-law of the said James Young primus. The claimant maintained that in respect Mrs Moodie did not predecease James Young secundus the settlement of the said James Young secundus did not effectually dispose of any part of said estate. (5) Alternatively, and if it should be held that the said estate was effectually disposed of by the settlement of the said James Young secundus, the claimant maintained that he was entitled to ride on any claim that might be made, either for the trustees under that settlement, or for Mrs Wyper as liferentrix under the same, to the extent of one-third of the amount claimed, whether the same be of fee or of income.

The claimant David Guthrie maintained (2) That in terms of the will of the late James Young of Scarlethall, Mrs Moodie became upon the death of John Primrose Young and Margaret Primrose Young entitled to the fee of the whole estate, her right, however, being in the nature of a protected succession, and subject to defeasance in the event of her having children, or alternatively, that she was entitled to one-third of said estate, together with one-half of the share liferented by John Primrose Young, and the whole of the share liferented by Margaret Primrose Young. If it was held that in the events which had happened the estate in the hands of the nominal raisers fell to be dealt with as intestate succession of the late James Young of Scarlethall, then he maintained that it had to be treated as moveable estate, and that Mrs Moodie was entitled to one-fourth thereof. He further maintained that any right which vested in Mrs Moodie was carried by her settlement. He claimed to be ranked and preferred to the whole fund in medio, or alternatively to five-sixths, or alternatively to one-fourth.

The claimant Mrs Wyper maintained—“(4) The estate of the said James Young primus at the date of his death consisted (with the exception of his household furniture bequeathed absolutely to his widow) entirely of heritage, and the said James Young secundus, as his eldest son and heir-at-law, was exclusively entitled there to, subject to the burden of the trust created by the said James Young primus, and the purposes of the said trust having now been fulfilled, the residue of the said estate, now forming the fund in medio, falls into intestacy and is to be treated as heritable estate to which the said James Young secundus acquired right as at the date of his father's death.” She claimed to be ranked and preferred to the whole fund in medio.

The Lord Ordinary ( Low) on 28th June 1900 pronounced the following interlocutor—“Finds (1) that upon a sound construction of the trust-disposition and settlement of the deceased James Young of Scarlethall, the fee of the trust-estate held by the pursuers and nominal raisers as trustees acting under said trust-disposition and settlement for behoof of Mrs Janet Edmonstone Young or Moodie in liferent was not disposed of in the event which happened of the death of the said Mrs Janet Edmonstone Young or Moodie without issue, and falls to be dealt with as intestate succession of the said James Young; (2) that the said succession falls to be regulated according to the character of the estate, whether heritable or moveable, at the date of the death of the (4)

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truster; (3) that James Young secundus was the eldest son and heir-at-law of the truster, and became entitled to the said estate in so far as the same was heritable at the date of the truster's death; and (4) that the said estate to which the said James Young secundus became entitled as aforesaid was carried to his testamentary trustees by the trust-disposition and settlement left by him: With these findings, appoints the cause to be enrolled for further procedure: Reserves all questions of expenses, and grants leave to reclaim.”

Opinion.—“The first question in this case is, Whether the late Mrs Moodie, in the event which happened of her dying without issue, was entitled to the estate held by the testamentary trustees of her father in fee?

The question depends upon the construction of the fifth purpose of the trust-disposition and settlement of the late James Young of Scarlethall, Mrs Moodie's father—[ his Lordship narrated the terms of the settlement].

The truster died in 1864, leaving no younger children except the three mentioned in the settlement. John Primrose Young died in pupilarity in 1866, and Margaret Primrose Young died unmarried and in minority in 1870. John predeceased his mother, but Margaret survived her.

A special case was then presented to the Court in regard to the shares of the estate held by the trustees for Margaret and John, and the Court found and declared that their share had ‘fallen into and become part of the residue of the trust estate to be administered and disposed of by the trustees in the manner provided with respect to Mrs Moodie's original share, for behoof of Mrs Moodie in liferent, exclusive of her husband's jus mariti, and of her children in fee.’

Mrs Moodie died in 1899, and the claimant David Guthrie is judicial factor upon her trust estate. He argued that upon a sound construction of the fifth purpose of Mr Young's settlement a right of fee was given to Mrs Moodie, and that the sole object of the truster in restricting her enjoyment of her share during her life to a liferent was to protect and secure the succession of her children, if she had children.

There are several cases in which where a daughter died without issue she was held to have taken a fee in a share of the estate, her enjoyment of which during her life was limited to a liferent. The leading cases are Lindsay's Trustees, 8 R. 281; Dalgleish's Trustees, 16 R. 559; and Logan's Trustees, 17 R. 425. In all these cases, however, there had either been a direct gift to the daughter or a direction to the trustees to pay to her. In this case no direct gift was given to Mrs Moodie, nor were the trustees directed to pay or convey to her any part of the capital of the trust estate. The trustees were merely directed ‘to hold and apply’ the residue of the estate ‘for the use and behoof of my younger children … under the burdens and conditions following,’ and the conditions following gave no right whatever to Mrs Moodie except a liferent.

Mr Hunter founded on the word ‘burdens’—‘under the burdens and conditions following’—and argued that the use of that word showed that the right given to her children was only a burden upon Mrs Moodie's right. I cannot accept that view. I think that the word ‘burdens’ referred to the fact that the shares given to sons and to younger daughters other than Mrs Moodie were burdened with a liferent to the truster's widow.

Mr Hunter also founded upon the declaration in the clause dealing with the event of the death of a child that the share of the deceaser shall ‘form part of my estate, and shall belong to my other younger children or their issue.’

I do not think that that declaration aids the view that Mrs Moodie took a fee. The clause in which it occurs applies to the whole children, whether sons or daughters, and must be read with reference to the rights which had been already conferred upon sons and daughters respectively. The declaration therefore appears to me to amount to no more than this, that in the event contemplated the share of the deceasing child shall fall back into residue, and shall be held for or paid to the surviving children or their issue upon the same terms as the original shares given to them. And that appears to me to have been the construction of the settlement adopted by the First Division in the special case. Upon the death of Margaret Young and John Young the very event contemplated in the clause with which I am dealing arose, and the First Division held that the shares of these children fell into residue, to be ‘administered and disposed of by the trustees in the manner provided with respect to Mrs Moodie's original share for behoof of Mrs Moodie in liferent and her children in fee.’

I am not sure that that was not a direct decision of the question raised in this case, because Mrs Moodie was a party to the special case, and claimed in fee the shares which had been set free. I assume, however, that at the time when the special case was presented it was possible that Mrs Moodie might still have children, and if that were so, probably the judgment of the Court cannot be regarded as deciding the rights of the parties in the event, which has happened, of Mrs Moodie dying without issue. It was decided, however, that the residue fell to be disposed of in the manner provided with respect to Mrs Moodie's original share, and for the reasons which I have given I am unable to find anything in the settlement which would justify the view that any other or higher right was given to Mrs Moodie with respect to her original share than a liferent.

The result is that the residue of the estate in the hands of the trustees has not, in the events which have happened, been disposed of, and falls to be dealt with as intestate succession of the truster. The next question therefore is, who in these circumstances is entitled to the residue?

I understand that the truster's estate may for the purposes of this case be regarded

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as having consisted at his death entirely of heritable property, and notwithstanding the direction to the trustees with which the fifth purpose of the settlement begins, ‘to realise and convert into money my whole means and effects,’ I think that his succession must be regulated by the character of the estate at the time of his death— Cowan, 14 R. 670.

Now, besides the three younger children mentioned in the fifth purpose Mr Young had an elder son, James Young, for whom in his settlement he had provided an annuity. James Young was his father's heir in heritage, and he died in 1876, survived by a widow and by a son and two daughters. The widow Mrs Wyper is a claimant as now sole trustee acting under her husband's trust-disposition and settlement, and the sou James Young is a claimant as heir-at-law of his father.

James Young maintains that the heritable estate of the truster was not carried by the settlement of his (the claimant's) father, (1) because the latter predeceased Mrs Moodie, and the succession did not open to him until that lady's death, and (2) because the terms of the settlement are not habile to carry the said heritable estate.

I am of opinion that the first of these grounds cannot be sustained. If the view which I have taken is sound, the truster, in the events which have happened, in no way disposed of his heritable estate, the succession to which therefore falls to be regulated by the law of intestate succession. Now, the law of intestate succession looks only to the date of death. It is then, and then only, that the heir falls to be ascertained, and James Young ( secundus), the truster's eldest son and the claimant's father, was the truster's heir in heritage. No doubt, owing to the terms of the truster's settlement the right of James Young ( secundus) was subject to the contingency of Mrs Moodie leaving children. But when Mrs Moodie died without children the contingency was at an end, and it appeared that the beneficial right to the estate had been in James from the date of his father's death, and that the trustees had truly been holding the fee for him.

The second ground is founded upon a very strict construction of the words of the trust-disposition and settlement left by James Young ( secundus). He there narrates the terms of his father's settlement and what had followed thereon, and he then proceeds—‘Considering that in the event of the said’ Mrs Moodie ‘deceasing without leaving issue, the whole purposes of the said trust-disposition and codicil will have been implemented, and the residue of the said estate will fall and belong to me or to my children as undisposed of and intestate succession of my father.… Therefore in order to provide for the management and disposal of the said residue in the event of my succeeding thereto,’ he disponed and assigned to trustees ‘the whole residue of said estate, heritable and moveable, to which I shall succeed in the event of my being predeceased by the said’ Mrs Moodie ‘without issue.’

The argument was rested mainly upon these last words. It was contended that as James Young ( secundus) died before Mrs Moodie, nothing could be carried by a conveyance of estate to which he should succeed if he was predeceased by her.

I do not think that that is a reasonable construction of the settlement. It is plain that what James Young ( secundus) was dealing with, and what he intended to convey to his trustees, was any right which he might have as heir ab intestato to his father in the event of Mrs Moodie dying without children. The only mistake which there is in the wording of the settlement is that it suggests that the right of James ( secundus) depended upon his being predeceased by Mrs Moodie, whereas it only depended upon Mrs Moodie dying without issue. The mistake, however, appears to me to be of the nature of a mere misdescription, which will not be allowed to defeat the plain intention of the testator.

I am therefere of opinion that, in so far as the succession consists of heritage, the claims for David Guthrie and James Young fall to be repelled, and the claim for Mrs Wyper sustained.”

The claimants James Young tertius and David Guthrie reclaimed.

The following cases were cited by the parties in support of their respective contentions:—

By the reclaimer David Guthrie— Downie's Trustees v. Cullen, March 16, 1882, 9 R. 749; Mackay's Trustees v. Mackay's Trustees, June 8, 1897, 24 R. 904, at 907; White v. Gow, July 11, 1900, 2 F. 1170; Dunlop's Trustees v. Sprot's Executor, March 9, 1899, 1 F. 722; Lindsay's Trustees v. Lindsay, December 14, 1880, 8 R. 281; Dalglish's Trustees v. Bannerman's Executors, March 6, 1889, 16 R. 559; Logan's Trustees v. Ellis, February 7, 1890, 17 R. 425; Maitland's Trustees v. M'Dermaid, March 15, 1861, 23 D. 732.

By the reclaimer James Young tertius— Muir's Trustees v. Muir's Trustees, March 19, 1895, 22 R. 553; Stewart's Trustees v. Stewart, January 22, 1896, 23 R. 416; Campbell's Trustees v. Campbell, June 30, 1891, 18 R. 992.

By the respondent Mrs Wyper— Rait v. Arbuthnott, March 18, 1892, 19 R. 687; Forbes' Trustees v. Forbes, January 13, 1893, 20 R. 248; Bruce's Trustees v. Bruce, June 7, 1875, 2 R. 775; Orr v. Mitchell, March 20, 1893, 20 R. (H.L.) 27.

At advising—