Scottish Court of Session Decisions

In this action the pursuer Mary Jane Nixon sought to have the defender William Rogerson, executor of the deceased Samuel David Rogerson, ordained to execute and deliver to her a conveyance of certain railway stocks with the dividends accrued thereon, and also sought an accounting by the defender of his intromissions with certain farm stocks and implements on the farm of Wamphraygate, and with other moveable estate of the deceased Samuel David Rogerson.

The facts of the case, so far as relating to the question decided by the Court at this stage, were as follows, as related in the opinion of the Lord Ordinary:—“The deceased Samuel David Rogerson executed a will on the 11th of January 1880, by which he instructed his executors as follows:—‘( Fifth) And with regard to the succession to the estate of my deceased father John Rogerson, which has already opened to me, but the funds of which I am not entitled to receive until I have reached the age of thirty years, I direct that the same shall be paid over to the said William Rogerson, to whom I bequeathe the same; and I do hereby assign, convey, and make over the same to him: ( Sixth) I direct my said trustees to convey and transfer to the said Mary Jane Nixon the whole of the shares of stock of the Caledonian and North British Railway Companies belonging to me at the time of my death.’

“The testator was the owner at the time of his death of £300 Lockerbie guaranteed stock of the Caledonian Railway Company, and of £290 stock of the North British Railway Company. These stocks had been the property of the testator's father John Rogerson, and by judgment of the Court [ in an action of multiplepoinding to which the defender as executor of Samuel David Rogerson was a party—reported 29 th June 1881, ante, vol. 18, p. 621] were held to have vested in and become the property of Samuel Rogerson at his father's death. The father John Rogerson had executed a deed of settlement whereby he conveyed his whole property to trustees, with directions to distribute it in a way which it is unnecessary to recite, farther than that he directed the interest and dividends derivable therefrom to be paid to his son Samuel till he arrived at the age of thirty, and the capital to be conveyed over to him on his reaching that age. Samuel did obtain the dividends on the above stocks from the trustees of his father, but he died before reaching the appointed age.

The defender in the present action is executor of Samuel Rogerson; and he is the legatee to whom the ‘funds’ of John Rogerson, to which his son Samuel succeeded, are bequeathed under the fifth direction of the will of Samuel.”

The Lord Ordinary ordained the defender to execute and deliver to the pursuer a valid conveyance and transfer in her favour of the stocks in question, and found him bound to account to her for all dividends accrued on them and paid to him since 15th January 1880, the date of Samuel David Rogerson's death, and granted leave to reclaim.

He added this note:—[ After the narrative of facts above given]—“If that clause” (the fifth purpose of Samuel David Rogerson's will) “had stood alone, without being followed by the sixth direction, it would have been sufficient to have carried the stocks in question to the defender. The word ‘funds’ is comprehensive enough to include stock of a railway company. But the sixth direction takes the case of these stocks entirely out of the fifth, because it deals specially with them. Apparently the testator had forgotten that he had taken the stocks as part of his father's succession, or perhaps he did not mean when he conveyed ‘funds’ to the defender under the fifth direction to include therein railway stocks. At all events, the sixth direction must be looked upon as not included in or as an exception to the general legacy in the fifth direction, and must be given effect to by sustaining the claim of the pursuer.”

The defender reclaimed, and argued that the testator could not mean by the gift to the pursuer contained in the sixth purpose to deal with anything falling under the succession which he had just given to the defender by the fifth.

The respondent's counsel was not called upon.