Scottish Court of Session Decisions

244 CASES DECIDED IN THE [fourth series.

No. 61.

Nov. 18, 1879.

Laing's Trustees v. Sanson,

d Division.

R.

Mrs Margaret Laing ok Sanson and Others, First Parties.-Asher-

C. J. Guthrie.

David Andekson Eisdale and Others, Second Parties.-Kinnear-

Wallace. Mrs Margaret Laing or Sanson and Others (Laing's Trustees), Third

Parties.-Asher-C. J. Guthrie.

Succession-Residue-Division per stirpes or per capita.-A testator bequeathed the residue of Ms means and estate " to be divided between my surviving brother and sisters, and the lawful issue of those who may be deceased, share and share alike," Held in a competition between the surviving brother and sisters, and the issue of a brother who was dead when the settlement was made, that the division fell to be made per stirpes, and not per capita.

David Laing, LL.D., librarian to the Society of Writers to the Signet, died on 18th October 1878 unmarried. He left a holograph trust-settlement dated 12th March 1864, wherein after directing his trustees to pay his lawful debts, &c, he proceeded,-

" The surplus of my said effects and property to be divided between my surviving brother and sisters, and the lawful issue of those who may be deceased, share and share alike."

The family to which Dr Laing belonged had originally consisted of nine-five sisters and four brothers, including himself. Of these at the date of the holograph trust-deed two brothers had died, one of whom had been survived by eight children,

A dispute having arisen as to whether the residue of Dr Laing's estate fell to be divided per stirpes or per capita among his surviving brother and sisters, and the issue of his predeceasing brother, a special case was prepared, to which those of his relatives who maintained that the division should be per stirpes were first parties, and those who were in favour of division per capita second parties, the trustees being third parties.

The questions were:-

" 1. Does the residue of the deceased's estate fall to be divided per stirpes ? 2. If the first question be answered in the negative, does said residue fall to be divided per capita ?"

Argued for the first parties;-The evident intention of the testator was that the residue was to be divided per stirpes.1 The children were only called in place of their deceased parents, and not as individuals.

1 George Murray and Others, July 18, 1873, 45 Scot. Jur. 574; Thomson v. Cumberland, Nov. 16, 1814, F.C.; Booth v. Vickers, Jan. 17, 1844, 1 Collyer, 6.

vol. vii.] COURT Of SESSION, &c. 245

No. 61.

Nov. 18, 1879.

Laing's Trustees v. Sanson,

Argued for the second parties;-It was a general rule that when persons were called in a clause of this nature, and when it was stated that there was to be equal division among all those favoured, the division was per capita. Here uncles and aunts, and nephews and nieces, were all called together to a share and share alike bequest.1

Lord Justice-Clerk .-I have no doubt in questions of this kind that the rule contended for by the second parties is quite sound, viz., that if you have an original bequest it will not signify that the parties favoured are called or nominated as members of a class. In that case, although others come in, it may be, and it is, a just rule that the division should be per capita. I regard the present case, however, not as an original bequest to the issue of a predeceasing brother as members of the class to be favoured along with the surviving brother and sisters, but on the contrary I think that these children are treated as a class by themselves, and consequently in a question between them and the surviving brother and sisters the division is very clearly to be per stirpes and not per capita.

What the testator says is :-" The surplus of my said effects and property to be divided between my surviving brother and sisters, and the lawful issue of those who may be deceased, share and share alike." I read that first without any reference to the condition of the family at the time, and on the assumption that all the testator's brothers and sisters were alive, and the question is, in the event of any of them predeceasing or dying before the period when the testament takes effect, what is the result? I cannot doubt that in that case the words " lawful issue of those who may be deceased " mean this, that the lawful issue take the share that their parent would have taken. I do not think we have to stretch the words to reach this result; it is the only meaning they could have. The ground upon which it is contended that the testator had not in view the issue as a class coming in place of their parent is that one brother had died leaving issue at the date of the settlement, and the word " surviving " gives a colour to this view. If that had been the whole question, there might have been something to say for that view ; if the bequest had been direct to " the issue of my deceased brothers," that would have brought it within the rule of division per capita. But when we find that the provision is to " the lawful issue of those who may be deceased," it is the same as if there had been no predeceasing brother at that time, and as if the bequest had been general to the brothers and sisters, in which case if any of them died leaving children then their issue would take the shares of their parents. The division is share and share alike between the brothers and sisters who survive, and the lawful issue of those who predecease. That is the result.

In the opposite view, it might happen that the shares of one of the sisters, or of the brother, which if they had all survived would have been of considerable amount, would be reduced to a mere illusory bequest by the fact that others had deceased leaving large families. I do not think that was in the mind of the testator, and I find nothing to justify it. On these grounds, I think we must answer the first question to the effect that the residue of the deceased's estate falls to be divided per stirpes.

1 M'Courtrey v. Blackies, Jan. 15, 1812, Hume's Dec. 270; Macdougall v. Macdougall, Feb. 6, 1866, 4 Macph. 372, 38 Scot. Jur. 187 ; Payne v. Webb, 1874, L. R., 19 Eq. 26.

246 CASES DECIDED IN THE [fourth SERIES.

No. 61.

Nov. 18, 1879.

Laing's Trus-tees v. Sanson,

Lord Ormidale .-I entirely agree with your Lordship. I could understand that a single word left out or a single word inserted in this bequest might make a great difference. But we must take the bequest exactly as we have it. Now, it appears to me, so taking it, to be clear that what the testator meant was that the issue of any of his brothers and sisters who might be dead at the date of his own death were to take per stirpes-in short, to come into the place of their deceased parent, and take that parent's share, and nothing more. The brothers and sisters themselves are the only persons to whom the bequest is primarily made, and then it is clearly indicated that it is only the lawful issue of such of these persons who predecease the testator who are to take as in the predeceaser's place. The words used are not " the issue of my deceased brother," but " the issue of those who may be deceased." The point of time is the testator's own death, and the issue of such of the brothers and sisters as predecease that time are to come into the place of their parents, and to take their parents' share. The plain intention of the testator must be given effect to.

Lord Gifford .-I am of the same opinion. A great deal depends on the very words used by a testator in Ms settlement, keeping in view the circumstances and relations in which the testator stood at the time. Indeed, the words used and the circumstances in which they were used are in general all that the Court can have. I look to the words used in the present case, and to the circumstances in which the testator stood, and the words raise the question of interpretation. As I read them, the testator intended to refer to the period of his death. A testament is of no effect while the testator lives. It gives his last words. In the present case the testator directs his surplus estate to be divided between his surviving brother and sisters. This was a most natural expression in the position in which the testator then was-one of his brothers having died leaving issue, the other brother still surviving,-and the testator then adds, " and the lawful issue of those who may be deceased." That applies not only to the surviving brother but to the brother who had died before. I am inclined to read the " and " as " whom failing." It is a bequest to those who are fit objects of the testator's favour. He has so much favour for them-his brothers and sisters-that he wishes his residue to go to the issue of any of them if any of them should fail. He was just declaring what the Intestate Succession Act had already provided, that if any person of the next of kin who would have taken had he survived the intestate shall have predeceased leaving issue, then such issue shall take their parent's share, that is, the issue of deceased next of kin shall take per stirpes, substituting issue for the person, provided that this rule should not go further than the descendants of brothers and sisters. The meaning of the words here is quite consistent with what must have been the testator's intention. He cannot have intended to give to the children of one of his brothers eight times the amount which he gave to his brother and sister.

I concur with your Lordship.

The Court answered the first question in the affirmative.

AULD & Macdonald, W.S.-Macandrew & Weight, W.S.-Agents.

7 R 244

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