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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cochrane's Trustees v. Cochrane [1914] ScotLR 382 (03 March 1914) URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0382.html Cite as: [1914] ScotLR 382, [1914] SLR 382 |
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Page: 382↓
(Before Seven Judges.)
A testatrix directed her trustees to pay to each of her three daughters respectively the income of one-third of the residue of her estate, and on the death of each to pay, divide, and convey the corresponding one-third of the capital “in the proportions following,” viz., to four sons and one daughter, nomination, “each two shares,” and to a granddaughter “one share.” She further provided that the issue of such as predeceased the terms of payment should take their parent's share, that vesting should be postponed until the period of payment, and that the interests “conferred on or accruing to” females should belong to them exclusive of the jus mariti or right of administration of their husbands. There was no clause of survivorship. One of the liferentrices having died predeceased by certain of the residuary legatees, the survivors contended that the shares which would have fallen to the predeceasers if alive had accresced to them (the survivors) in proportion to the original shares left to them under the settlement.
Held ( diss. Lord Mackenzie) that the testatrix intended not a joint bequest but a series of separate bequests, and that, accordingly, the shares which the predeceasers would have taken had they survived did not accresce to the survivors, but became intestate succession of the testatrix.
Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191, 23 S.L.R. 830, followed.
On 22nd November 1912 Archibald Cochrane, Abbotshill, Galashiels, and others, the testamentary trustees of the late Mrs Janet Lees or Cochrane, widow of Walter Cochrane, manufacturer, Galashiels, first parties; the said Archibald Cochrane and others, second parties; and John Chapman, solicitor, Galashiels, and others, the testamentary trustees of the late Adam Lees Cochrane, Kingsknowes, Galashiels, and others, third parties, brought a Special Case as to their respective rights in the one-third share of the estate liferented by the late Miss Jane Cochrane, a daughter of the testatrix.
By her trust-disposition and settlement Mrs Cochrane provided, inter alia, as follows—“With regard to the free residue and remainder of my means and estate hereby conveyed, my said trustees and executors shall pay over to each of my said three daughters, Jane, Mary, and Jessie respectively, the annual produce of one-third part of the said residue of my means and estate
Page: 383↓
during all the days and years of their respective lives:… And on the death of each of my said daughters, Jane, Mary and Jessie, my said trustees shall, at the first term of Whitsunday or Martinmas which shall happen six months thereafter, pay, divide, and convey the one-third part of the principal of the residue of my said means and estate of which she received the annual produce … in the proportions following, videlicet—To my said sons, Adam Lees Cochrane, John Cochrane, Archibald Cochrane, and Walter Cochrane, and to my daughter Mrs Agnes Cochrane or Roberts, spouse of William Roberts, manufacturer, Galashiels, each two shares, and to my granddaughter Jessie Roberts, one share; and in the event of any of the said Adam, John, Archibald, or Walter Cochrane, or Mrs Agnes Cochrane or Roberts, or Jessie Roberts dying before the said period of payment leaving lawful issue, such issue shall be entitled equally among them to the share to which their parent would have been entitled to if in life; and I declare that the interests of the said Adam, John, Archibald, and Walter Cochrane, and Mrs Agnes Cochrane or Roberts and Jessie Roberts in the said residue shall vest in them at and only upon the arrival of the terms at which their shares of the residue of my said means and estate respectively become payable. And I declare that the interests in my means and estate conferred on or accruing to females in virtue of this settlement shall belong to them exclusive of the jus mariti and right of administration of their husbands, and shall be dischargeable by themselves alone.” Adam Lees Cochrane, John Cochrane, Archibald Cochrane, Walter Cochrane, Jane Cochrane, Mary Isabella Cochrane (afterwards Mrs Macgregor), Jessie Brown Cochrane, Mrs Agnes Cochrane or Roberts, and Jessie Roberts (afterwards Mrs Dickson) were the whole heirs in mobilibus of the truster at the time of her death. In consequence of the death of Jane Cochrane (one of the three liferentrices) upon 10th July 1911, the one-third of the principal of the residue of the truster's estate, of which she had received the annual produce, became available for division. Of the persons named in the said direction to pay, divide, and convey the said one-third of principal, Adam Lees Cochrane, John Cochrane, and Mrs Agnes Cochrane or Roberts, all predeceased Jane Cochrane without leaving issue. Walter Cochrane predeceased her, leaving issue, all of whom survived the said Jane Cochrane. Archibald Cochrane and Mrs Jessie Roberts or Dickson and the children of Walter Cochrane were the only residuary legatees who survived Jane Cochrane. Any share of or right in or to the residue falling to Jessie Roberts or Dickson was at the date of the case vested in her marriage-contract trustees.
The second parties maintained (article 10 of the Case) that on a sound construction of the said trust-disposition and settlement, the said one-third of the principal of the residue fell to be divided and conveyed to and among them in the proportions of two shares to the said Archibald Cochrane, two shares equally among the children of Walter Cochrane, and one share to the marriage—contract trustees of Mrs Jessie Roberts or Dickson. They contended that it was not the intention of the truster to direct or operate any severance of particular shares or interests before and until the period of division arrived, and that she intended the survivors and the issue of the predeceasers of those nominated under the clause dealing with division of the principal of residue to take the whole of each third as the succession opened, dividing it in the proportions pointed out by the shares appointed to each nominee or his issue. On the assumption that the truster intended an earlier severance of the bequests, the second parties contended that the shares which would have fallen to Adam Lees Cochrane, John Cochrane, and Mrs Agnes Cochrane or Roberts had accresced to the surviving residuary legatees (namely, the second parties) in proportion to the original shares left to them under the trust-disposition and settlement. In such event the division as among the second parties would be in the proportions hereinbefore stated.
The third parties maintained that under the said trust-disposition and settlement the respective shares of capital left to the residuary legatees were separate and distinct, and that there was no room for accretion in the event of any of them predeceasing the period of division without leaving issue. They accordingly contended that the respective shares of capital which would have fallen to the said Adam Lees Cochrane, John Cochrane, and Mrs Agnes Cochrane or Roberts had they survived the said Jane Cochrane, lapsed by their predecease without issue, and now fell under intestacy to the heirs in mobilibus of the truster as at her death.
The questions of law, as amended, were—“(1) Does the whole one-third part of the residue of the trust estate liferented by Miss Jane Cochrane now fall to be divided among the second parties in the proportions set forth in article 10 hereof? or (2) Does the said one-third part fall to be divided to the extent of five-elevenths thereof among the second parties under the said trust-disposition and settlement, and to the extent of the remaining six-elevenths thereof as intestate moveable estate of the truster?”
On 14th January 1914 the Court appointed the case to be heard before Seven Judges.
Argued for the second parties—The rule in Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191, 23 S.L.R. 830, that when a legacy was given to a plurality of persons, named or sufficiently described for identification, “equally among them” or “in equal shares,” there was no room for accretion, was not an arbitrary one, but might be displaced by indications of a contrary intention, as thus, where the right conferred was a conjunct one— Tulloch v. Welsh, November 23, 1838, 1 D. 94; or where the bequest was to an unascertained class— Muir's Trustees v. Muir, July 12, 1889, 16 R. 954, 26 S.L.R. 672; Brown v. Warden, January 11, 1905, 12 S.L.T. 670; or where a joint-gift was
Page: 384↓
intended— Menzies' Factor v. Menzies, November 25, 1898, 1 F. 128, 36 S.L.R. 116; Roberts' Trustees v. Roberts, March 3, 1903, 5 F. 541, 40 S.L.R. 387. The words “the proportions following,” relied on by the third parties, did not imply severance, but only that the beneficiaries were to get different amounts. The bequest was one to a class, viz., the descendants of the testatrix. In dealing with her daughter's shares the testatrix had herself used words which implied accretion, for she had spoken of “the interests … conferred on or accruing to females.” The cases ( cit. infra) relied on by the third parties were distinguishable, for they contained words which clearly implied a severance of interests, or, where that was not so, were decided on specialties. Argued for the third parties—Where, as here, the beneficiaries were named, and where, as here, specific shares were given to each, there was no room for accretion—Stair, iii, 8, 27; Paterson v. Paterson, (1741) M. 8070; Rose v. Roses, (1782) M. 8101; Stevenson v. Macintyre, June 30, 1826, 4 S. 776 (784); Torrie v. Munsie, May 31, 1832, 10 S. 597; Buchanan's Trustees, June 15, 1883, 20 S.L.R. 666; Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191, 23 S.L.R. 830; Crawford's Trustees v. Crawford, July 8, 1886, 23 S.L.R. 787; Stobie's Trustees v. Stobie, January 27, 1888, 15 R. 340, 25 S.L.R. 250; Wilson's Trustees v. Wilson's Trustees, November 16, 1894, 22 R. 62, 32 S.L.R. 54; Stirling's Trustees v. Stirling, December 6, 1898, 1 F. 215, 36 S.L.R. 194; Graham's Trustees v. Graham, November 30, 1899, 2 P. 232, 37 S.L.R. 163; Farquharson v. Kelly, March 20, 1900, 2 P. 863, 37 S.L.R. 574; Hunter's Trustees v. Dunn, January 27, 1904, 6 P. 318, 41 S.L.R. 251; M'Laren v. M'Alpine, 1907 S.C. 1192, 44 S.L.R. 900; M'Gregor's Trustees v. M'Gregor, 1909 S.C. 362, 46 S.L.R. 296. That being so, the shares of such as had predeceased the period of distribution fell into intestacy. The cases of Muir's Trustees ( cit.), Menzies' Factor ( cit.), Roberts' Trustees ( cit.), and Brown ( cit.), relied on by the second parties, were distinguishable, for in none of them was there, as there was here, a clear severance of interests. Esto that the rule might be displaced by indications of a contrary intention, such indicia as were present here favoured its applicability, e.g., the absence of any clause of survivorship and the use of the terms “share” and “respectively.” The fact that distribution was postponed and that there was a conditional institution of issue, was immaterial.
At advising—
The question is whether the rule as thus annotated applies to the settlement before us. Have we here a joint legacy or a series of separate legacies? Did the testatrix intend a joint bequest or a series of separate bequests? I turn to the residuary clause of the settlement for an answer to these questions. By it the testatrix directed that each of her three daughters, Jane, Mary, and Jessie, should enjoy the income of one-third of the residue of her estate, and on her death she directed that the capital of the sum so liferented should be divided “in the following proportions, viz.,” two shares to her sons Adam, John, Archibald, and Walter, two shares to her daughter Agnes, and one share to her granddaughter Jessie Roberts; and then follows a clause by which she directs that in the event of predeceasers of any one of her three daughters leaving issue the issue should take their parent's share. There is no clause of survivorship. By the vesting clause she directed that vesting should be postponed until the period of payment.
Now we have present here, I think, in the clause I have just read, all the indicia of a bequest to separate individuals and not of a joint bequest. We have here a plurality of persons—four sons, a daughter, and a granddaughter. Each of these persons is separately named and identified. To each, as I read the clause, separate shares of residue are given. The bequest is not a bequest to a class in the proper sense. All the children are not included; three daughters are excluded. All the grandchildren are not included; one grandchild alone is embraced. The shares are unequal. To each child is given double the share that is given to the grandchild. This is not a bequest to a class of persons the number of which cannot be ascertained until the date of distribution or of vesting. There is here a distinct expression of intention that predeceasers who leave children should transmit their shares to their children, but there is no clause of survivorship.
Page: 385↓
Now all these features of this residue clause seem to me to point in favour of the application of the rule of construction with which we are here concerned.
It remains, however, to examine the rest of the settlement for the purpose of seeing whether or no we can find in it any indication of an intention that the rule should not apply, but, on the contrary, that accretion should take place. I can find none. To two features mainly our attention was directed—first, it is said that the vesting clause affected the question because vesting was postponed and did not take place a morte. I cannot understand the argument that because a fund falls to be distributed at one time rather than at another, the bequest of it should be interpreted as a joint bequest and not as a separate bequest, and therefore I am not prepared to discuss the question.
In the second place, our attention was directed to the fact that the residue clause proper was prefaced by the words to be divided “in the following proportions,” and it was said that the word “proportion” indicated an intention to make a joint bequest rather than a separate bequest. I cannot agree. There is no magic in the Word share. The use of the word proportion or of the word interest is as clearly indicative of an intention to sever and not to conjoin as the use of the word share. It signifies not how severance is to be effected. It may be effected by fixing proportions. It may be effected by carving out interests. It may be effected by allotting shares. It signifies nothing which of these expressions is used; and, indeed, if we substitute in the residue clause the word “share” for the word “proportion” we see that the meaning remains unchanged. An excellent illustration of the use of the word proportion in the sense I have indicated is to be found in the opinion of Lord Kinnear in the case I have just mentioned of Roberts' Trustees, where he says (5 F. at p. 544–5)—“If a legacy is given to a family jointly without naming or enumerating individuals, it must either be given equally or in specific proportions, and if it be clear, as in this case it certainly is, that the testator had no definite proportions in his mind, because he did not know how many persons might participate, it is of no consequence whether an equal division is expressed in terms or not.” In that passage Lord Kinnear uses the expression “proportions” as equivalent to the expression “shares,” and in my judgment there is no difference between the two when you are considering the question whether the testator intended a joint bequest or a series of separate bequests.
Of the authorities cited to us, with the case of Paxton's Trustees v. Cowie, I regard the two cases of Crawford's Trustees v. Crawford and Others, (1886) 23 S.L.R. 787, and M'Laren v. M'Alpine, 1907 S.C. 1192, as approaching nearest to the present case. In both of these cases, no doubt, the residue clause was prefaced by a distinct direction by the testator to his trustees to divide the residue into a specified number of parts. On that feature, however, the Court, in giving judgment in each of these cases, laid no stress; and I am not surprised, for if the bequest to individuals be clear and definite it signifies nothing whether it is prefaced by an instruction to divide into a certain number of shares. The arithmetic is easy. The words are superfluous. They add nothing to and subtract nothing from the meaning of the expression.
If, then, it is clear, as I think it is, that a series of separate bequests and not a joint bequest was intended by the testatrix, the solution of the two questions put to us is easy. The daughter Jane died in the year 1911, and at the date of her death the capital of the share of residue liferented by her became available for division. At that date all the sons of the testatrix except Archibald had died. Her daughter Agnes had died; her grandchild Jessie Roberts survived, and four children of a deceased son, Walter. The surviving son Archibald, the four children of the deceased son Walter, and the grandchild, now Mrs Dickson, claim the whole capital of the one-third of residue which was liferented by the daughter Jane. In other words, they ask us to divide this part of the residue of the estate into five parts, whereas the testatrix directed that it should be divided into eleven parts. In my opinion their claim cannot be given effect to. The shares which the predeceasers would have taken had they survived now, in my judgment, fall into intestacy, and accordingly I propose to your Lordships that we should answer the first question put to us in the negative and the second in the affirmative.
Page: 386↓
Now that the case has been reconsidered with the assistance of your Lordships I am satisfied that we have to take Mrs Cocnrane's settlement as it stands, and make the best of it, regardless of the fact that, while precise in each of its clauses taken separately, it does not make an entirely homogeneous whole, regarding it as, what it was intended to be, a universal settlement.
Mrs Cochrane gave each of her three unmarried daughters a life interest in one—third of the residue of her estate, and making no provision for their issue should they marry and leave issue; she directed that on the death of each her trustees should pay, divide, and convey the corresponding one-third of the capital “in the proportions following,” viz., to four sons and one daughter nominatim“ each two shares,” and to a granddaughter one share. This was followed by a conditional institution of the issue of those dying before the period of payment leaving lawful issue, but by no destination-over. Jane Cochrane, one of the unmarried liferentrices, died in 1011, and questions have arisen as to the disposal of the capital of the share of residue life—rented by her. She was predeceased by two of the brothers and the sister without issue, who were among those to whom the capital of the residue was destined. She was survived by one of the brothers, by the issue of the remaining brother, and by the granddaughter.
It appears to me that the keynote of the whole of the residue clause is severalty or segregation. It provides a several liferent to each unmarried daughter. It provides on the death of each for division of the share of capital efieiring to her liferent. And it divides that share in the proportions following, viz., to five persons nominatim each two shares, and to the sixth one share. The word “each” is predominant and permeates the whole.
All I think that we derive from Paxton's case is that where expressions are used in a testamentary bequest which express that the bequest is joint there is accretion, and that where expressions are used which express severalty, unless there are indications throughout the bequest that severalty is not really intended, accretion does not take place. What the late Lord President does is, I think, merely to give an example of the expressly several bequest, as where one is made not to a class but to selected individuals, even though selected out of a class, divisible equally among them, or equally share and share alike. A fortiori where the division is unequal.
In the present case the one and only possible indication that severalty is not intended is the use of the words “in the proportions following.” The best that can, I think, be said for consequent accretion is that the term taken by itself is indeterminate, and would be consistent with either intention. But where it is overridden by the general conception of the clause, by its collocation with the word “each,” and by the fact that inequality is provided for, it cannot, in my opinion, turn that which without it is emphatically a several bequest, into one intended nevertheless to be joint.
Following, then, Paxton's Trustees, I think that there is no accretion here, and that the questions should be answered accordingly in favour of those parties maintaining resulting partial intestacy.
Page: 387↓
The Court answered the first question in the negative, and the second question in the affirmative.
Counsel for First Parties— Wilson, K.C— D. M. Wilson. Agents— Kinmont & Maxwell, W.S.
Counsel for Second Parties— Chree, K.C.— A. M. Mackay. Agents— Wishart & Sanderson, W.S.
Counsel for Third Parties— Constable, K.C.— Milne. Agents— Kinmont & Maxwell, W.S.
