Scottish Court of Session Decisions

This multiplepoinding was raised to determine the succession to a portion of the estate of the late Alexander Fraser, tide-waiter in Inverness, who died in the year 1841, and possessed at that time two properties, the one in High Street and the other in Bridge Street, Inverness. The Bridge Street property was bought by Fraser in 1826, and the title was taken “to and in favour of the said Alexander Fraser and Mrs Janet Kay, otherwise Fraser, his spouse, in conjunct fee and liferent for the said Mrs Janet Kay, otherwise Fraser, her liferent use allenarly, and after the death of the said Alexander Fraser and Mrs Janet Kay, otherwise Fraser, to Isabella Fraser, Mary Fraser, Margaret Fraser, Janet Fraser, and Catherine Fraser, daughters procreated of the marriage between the said Alexander Fraser and Mrs Janet Kay, otherwise Fraser, and any other child or children, male or female, to be procreated of the said marriage, or of any future marriage into which the said Alexander Fraser shall enter, equally, share and share alike, and the survivor of them, in liferent, for their liferent use allenarly, and to the child or children of the said Isabella Fraser, Mary Fraser, Margaret Fraser, Janet Fraser, and Catherine Fraser, or any other child or children to be procreated as aforesaid, male and female, equally share and share alike, their heirs and assignees whomsoever, heritably and irredeemably, in fee.”

The High Street property was conveyed by Alexander Fraser in trust to certain trustees, for the following purposes, inter alia:—“ In the third place, I further direct and appoint my said trustees or trustee to pay over from time to time the free rents and profits of the foresaid burgage subjects in High Street to James Fraser and Alexander Fraser, my sons, and Miss Margaret Kay, my sister-in-law, equally between them, share and share alike, but in case the said Miss Margaret

Page: 346↓

Kay shall predecease the longest liver of me and my said spouse, then and in that event I appoint my said trustees or trustee to pay over to my said daughters, and the survivors of them, in equal proportions, the one-third share of the said rents hereby appointed to be paid to her, the said Margaret Kay: In the fourth place, In case the said Margaret Kay shall survive the longest liver of me and my said spouse, and shall also survive one of my said sons, it is my will and I hereby declare that she shall be entitled to the sum of £5 sterling yearly over and above her said third of the rents of the said property, which shall be paid by my said trustees or trustee out of the share of the said rents, &c., belonging to whichever of my said sons may happen to predecease her, and I direct and appoint my said trustees or trustee to pay to my said daughters, or the survivors of them, in equal proportions, the residue or balance of such share; declaring that in case she, the said Margaret Kay, shall survive both my said sons, she shall be entitled, after the death of the longest liver of them, to the just and equal parts of the said free yearly rents and profits, which I direct my said trustees or trustee in that event to pay to her accordingly, and upon the death of the said Margaret Kay it is my will that the share of the said rents hereby appointed to be paid to her shall in like manner be from time to time divided among my said daughters, and the survivors of them, share and share alike; and upon the death of the survivor of my said sons, the share of the said rents belonging to him in virtue of these presents shall likewise be paid over to and divided among my said daughters, and the survivors of them, in equal proportions: In the fifth place, In case my said sons, or either of them, shall leave lawful issue, I hereby direct and appoint my said trustees or trustee, upon the death of the longest liver of my said sons, to dispone, convey, and make over the said burgage subjects in High Street to the lawful child or children, whether male or female, of my said sons, or either of them, equally between them, share and share alike, in case there shall be more than one, whom failing, the said property shall fall and belong to my nearest and lawful heirs; but such conveyance shall be granted with and under the burden of the liferent right hereby created in favour of my said daughters and the said Margaret Kay, or such of them as shall survive the longest liver of my said sons; it being my wish and desire that my said trustees or trustee shall retain the management of the said property, and uplift and apply the rents thereof until the said liferent rights be completely extinguished.”

The truster left two sons, one of whom died in 1834, the other being a defender in the present case; and five daughters, one of whom died unmarried and intestate in 1850, and another of whom married Alexander Rennie, solicitor in Inverness, and died in 1851, leaving three children (claimants in the action); three of the truster's daughters still survive, and are claimants, and the real raisers in the multiplepoinding. The rents of the two properties were divided without question among the truster's family claiming right thereto until 1862, when questions arose as to the disposal of the shares of the rents which, in the events which had happened, would have been payable to Mrs Rennie, if she had survived; and these shares had since been allowed to accumulate in respect of said questions, which the present action was raised to settle. The accumulation in this way of the rents of the Bridge Street property amounted to £143, 2s. 7d., and of the High Street property to £45, 14s. 5d.; these two sums together formed the fund in medio. The three surviving daughters of the truster claimed the whole fund, on the ground that under the deeds in question Mrs Rennie's liferent share in both properties devolved at her death upon them as her survivors. The children of Mrs Rennie, on the other hand, claimed their mother's share of the rents of the Bridge Street property, on the ground of a marginal note on the disposition in question, said to be holograph of their grandfather, in the following terms—“If any of my daughtrs deae and live childern, they fall into the mother shear of the rents, and so on whill any of there Ants live, after this it fall in equll share to all my granchilden by my daugters, in eqal shears, meal and femal. (Signed) Alexr. Fraser.” And they also claimed her share in the rents of the High Street property, on the plea that under the trust-disposition they took as conditional institutes said share of the rents until they fell to be conveyed to the persons named in fee.

The Lord Ordinary ( Mure) pronounced the following interlocutor:—

“22 d December 1873.—The Lord Ordinary having heard parties' procurators, and considered the closed record and productions: 1 st, Ranks and prefers the claimants, Mrs Isabella Fraser or Jack; Mrs Mary Fraser or Osborne, wife of William Osborne, and him for his interest; and Mrs Catherine Fraser or Aitchison, wife of John Aitchison, and him for his interest, each to one-third of the sum of £45, 14s. 5d., forming the second item of the fund in medio, with the interest due thereon, less a proportional share of the expenses found due by the interlocutor of 18th July 1873, and decerns: Quoad ultra, repels the claim of the said parties: 2 d, Ranks and prefers the claimants, Alexander Rennie, John Rennie, and Jessie Rennie or Manhood, wife of Manhood, and him for his interest, in terms of the second head of their claim, to the sum of £143, 2s. 7d., forming the first item of the fund in medio, with the interest due thereon, less a proportional share of the expenses found due by the interlocutor of the 18th of July 1873, and decerns: Quoad ultra, repels the claim of the said parties, and finds no expenses due to or by either party in this competition.

Note.—1st. As regards the claim made in this process by the children of the late Mr Rennie to the portion of the fund in medio which consists of the rents of the property situated in High Street, Inverness, which was settled in trust by the late Alexander Fraser in 1838, it appears to the Lord Ordinary that the provisions of the trust-deed are very express, to the effect that the free rents and profits of the subjects were, on the failure of any of the parties to whom they were in the first instance appointed to be paid, to go to the truster's daughters and the survivors of them in equal proportions, share and share alike; and that there is nothing in the terms of the trust to indicate that there was any intention on the part of the truster that these express directions were to be departed from in the case of a deceasing daughter leaving a family. Because not only are those rents so destined to the daughters throughout the clause founded on, but even when the truster comes to provide for the disposal of the fee of the estate, in the case of either of his sons, to whom in the first instance a

Page: 347↓

share of the free rents and profits was appointed to be paid, leaving lawful issue, the conveyance which is directed to be made in favour of those issue is expressly burdened with the liferent right created in favour of his daughters, ‘or such of them as shall survive the longest liver’ of his sons. The Lord Ordinary has therefore repelled the claim of Mrs Rennie's children to the share of these rents, which would have gone to their mother had she been alive.

2d. The claim made by these children to the share of the rents of the Bridge Street property, which would have fallen to their mother, raises a question of considerable nicety; but after giving that question the best consideration in his power, the Lord Ordinary has come to the conclusion that the holograph alteration made by the late Mr Fraser on the margin of the disposition of that property, which was found with that alteration upon it in his repositories at his death, is sufficient to operate as a recal or exclusion of the liferent interest of the survivors of his daughters as regards the pro indiviso share of the rents which had been enjoyed by a deceasing daughter, in favour of the children of that daughter. For although there are no words of disposition in the holograph alteration, the circumstance that a pro indiviso share of the fee of the property was by the original deed conveyed to the children of that daughter, appears to the Lord Ordinary to be sufficient to obviate the conveyancing difficulties which might otherwise have been felt in considering whether effect should be given to that marginal addition.

By the dispositive clause of the deed the property was conveyed to Alexander Fraser and his wife in conjunct fee and liferent, and after their death to their five daughters nominatim, share and share alike, and to the survivor of them, ‘in liferent, for their liferent use allenarly,’ and to the child or children of the said daughters equally, ‘share and share alike, their heirs and assignees whomsoever, heritably and irredeemably in fee.’ But although by the terms of this clause a gift is made to the survivor of the daughters of the liferent of any predeceasing sister's share of the rents, to the exclusion of the right of the children of that sister to draw the rents of their pro indiviso share of the fee during the lives of the surviving daughters, there is a clause of reservation in the disposition, which confers upon their father full power and liberty at any time in his life, and without the consent of his wife, or of their said children, to sell, or ‘even gratuitously to dispone the subjects; and, generally, to do everything thereanent as if he were sole and absolute fiar, and as if there had been no conveyance’ in favour of his wife in liferent, or of his children and their foresaids in liferent and fee.

Such being the nature of the power reserved in the disposition, and which is appointed to enter the infeftments, and the fee of the property having been distinctly conveyed to the children by the disposition, it appears to the Lord Ordinary that any duly authenticated holograph writing of Mr Fraser which either expressly or by necessary implication indicated a clear intention on his part to exclude the surviving daughters from the liferent of a deceasing daughter's share, and that the children of that daughter, who were by the conception of the deed the pro indiviso fiars of a portion of the property, should upon their mother's death, draw the rents of that share instead of their surviving aunts,—is a declaration of intention to which effect should be given in the matter of a family settlement, of which this deed is substantially a part—if that can be done, as it here in the opinion of the Lord Ordinary can, without any infringement of the rules applicable to the conveyance of heritable estate. If, therefore, the late Mr Fraser, in the exercise of the power of alteration, had by a separate holograph writing made a declaration of similar import to that in the marginal addition, of his wish and intention relative to the disposal of the share of the rents which he had gifted to any of his daughters who died leaving children, that declaration would, it is thought, have been sufficient without any actual words of recal, or any words disponing the liferent interest of the predeceasing mother to her children, to entitle these children, as fiars, to draw the rents of the pro indiviso share of the property belonging to them in fee. And if the Lord Ordinary is right in this view, he does not think that the circumstance that the alteration in question was not made by a separate writing, but upon the margin of the deed, although in a somewhat rough way, by the party himself, is sufficient to entitle the Lord Ordinary to refuse to allow effect to be given to it, in favour of the parties for whose benefit it was plainly intended to operate.”

The daughters, Mrs Jack, and others, reclaimed, and argued—

The marginal addition, if it be holograph of the granter, is not good to the effect of conveying heritage. [ Lord Neaves—Was the marginal addition there at the date of infeftment?] We do not know; but it is not in the infeftment. This is not a habile way of conveying the liferent to the children.

Authorities— Richmond's Trs., 3 Macph. 395, 2 Bell's Lect. 866; Ross, 1779 Exch. Dec.; 1 M'Laren 492 and 963; Govan, 20th Jan; 1812, F.C.; Henderson, M. 4141.

The pleas in law for the claimants were as follows:—“(1) On a sound construction of the disposition of the Bridge Street property, the claimants on the death of their mother became entitled to the share of the rents which would have fallen to her if in life, and the same are payable to them until the time arrives for their receiving a conveyance of the fee. (2) The memorandum on the said disposition being holograph of the deceased and authenticated by his signature, is a valid testamentary writing, and in accordance therewith the claimants ought to be preferred in terms of their claim. (3) The writing is at least admissible as an aid to the construction of the deed. (4) Under the trust-disposition and settlement of the deceased the claimants take as conditional institutes their mother's share of the rents of the High Street subjects until the same fall to be conveyed to the persons named in fee, and they therefore ought to be ranked and preferred in terms of their claim.”

At advising—