Scottish Court of Session Decisions

David Melville, merchant in Greenock, died on 30th September 1845, leaving a trust-disposition and settlement and two codicils, dated respectively 8th December 1836, 30th November 1838, and 11th April 1843. By the said trust-disposition and settlement he disponed to certain trustees therein mentioned his whole estate, moveable and heritable, in trust for the ends, uses, and purposes therein mentioned. After providing for the disposal of his moveable estate he proceeded as follows:—“In the seventh place, that my said trustees, acceptors or acceptor, survivors or survivor of them, the major number accepting and surviving being a quorum, shall, so soon as they see fit, give, grant, and dispone to and in favour of the said Mrs Martha Melville or Simpson and Mrs Catherine Melville or. King, equally between

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them in liferent, for their liferent use respectively allenarly, and in the event of any one of them deceasing without leaving lawful issue of her body, the share of deceased to be given and disponed and to belong to the daughter surviving in liferent, for her liferent use allenarly, but excluding the jus mariti of her present husband, or any future husband she may marry; and to the said Catherine Melville Simpson and John King, my grandchildren lawfully born, and other grandchildren to be lawfully born, by my said two daughters, of their present or any future marriage, equally among them, share and share alike, any of whom failing the share or shares of the deceased or deceasers to the survivors equally among them, share and share alike, my whole heritable subjects and estates before described in fee.” The heritable estate of the deceased was situated partly in Greenock and partly in Helensburgh. The above direction as to the disposal of his heritable estate was subsequently revoked as to his Helensburgh properties by the second codicil to his will, but remained in force as to the Greenock properties. The testator also by the same deed appointed a free yearly allowance to be made to his widow, which he subsequently increased by his first codicil. He was survived by his widow, who died in 1859, and by his daughters Mrs Simpson and Mrs King, who were his only children.

Mrs Simpson died on 1st December 1886, and Mrs King was living at the date when this case was presented to the Court.

Mrs Simpson's children were five in number. Two survived their mother, namely, Mrs Marshall and Mrs Fraser, two of the parties of the first part. The other three predeceased their mother, viz., (1) David Melville Simpson, who died 6th August 1882, intestate, leaving a widow and children. His eldest son was David Melville Simpson, one of the parties of the second part. (2) Alexander Simpson, who died in 1853, leaving no issue, and (3) John Simpson who died in April 1886, leaving a widow and two children. His only son was John Ewing Melville Simpson, born in July 1885, one of the parties of the first part. Under a general settlement executed by John Simpson his whole estate was conveyed to his widow Mrs M'Innes or Simpson, one of the parties of the first part.

Mrs King had two children. (1) David King, who died in 1863; and (2) John King, one of the parties of the second part.

A difference of opinion having arisen as to the disposal of these Greenock properties, a special case was presented to the Court to have the question determined. The point upon which doubt was entertained was as to what was to be done with the shares which Alexander Simpson, who died in 1853, and David King, who died in 1863, would have taken, had they survived the death of Mrs Simpson; and the decision of that question necessarily depended on whether at the time of their death they had a vested right in these shares or not.

The opinion of the Court was requested upon the following questions:—“(1) Did the fee of the said Greenock properties vest in the testator's grandchildren or their issue at the testator's death, or otherwise at a period prior to the deaths of the said Alexander Simpson in 1853, and David King in 1863? Or was vesting postponed till the death of his daughter Mrs Martha Melville or Simpson, or otherwise till a period subsequent to the deaths of Alexander Simpson in 1853, and David King in 1863? (2) Do the said Greenock properties fall to be divided into five equal shares, one of which is to be conveyed to each of Mrs Marshall, Mrs Fraser, John King, David Melville Simpson, and John Ewing Melville Simpson, or into seven equal shares, which fall to be conveyed as follows:—One share each to Mrs Marshall, Mrs Fraser, and John Ewing Melville Simpson, and two shares to be conveyed to each of John King and David Melville Simpson; or in what other proportions or shares do the same fall to be divided among the beneficiaries?”

The first parties maintained that the vesting of these properties did not take place until the death of the testator's daughter Mrs Simpson, or otherwise until a period subsequent to the deaths of Alexander Simpson in 1853 and David King in 1863, and that the properties should be divided into five equal shares, one of which should be conveyed to each of Mrs Marshall, Mrs Fraser, John King, David Melville Simpson, and John Ewing Melville Simpson. The necessary result of a survivorship clause where there was an interposed liferent was to postpone vesting till the period of distribution— Young v. Robertson, February 11, 1862, 4 Macq. 314 ( per Lord Westbury, p. 319); Snell v. White, May 24, 1872, 10 Macph. 745; M'Alpine v. Studholme. &c., May 20, 1883, 10 R. 837.

The parties of the second part maintained that vesting took place a morte testatoris, or otherwise at a period prior to the deaths of Alexander Simpson and David King, and that the properties should be divided into seven shares, one of which should be conveyed to each of the five persons named by the first parties, leaving two shares to be dealt with as follow—One to be conveyed to John King as heir of his deceased brother David King, and the other share to be conveyed to David Melville Simpson as heir of his father, who was heir of conquest to Alexander Simpson. “Any of whom failing” meant any of whom failing prior to the death of the testator. There were specialties in the case of Young v. Robertson distinguishing it from the present case, and consequently it was not decisive on the question of construction to be decided here. Snell's case, again, differed from the present as there was no interposition of a trust there. An interposed liferent did not necessarily defer vesting till the period of distribution. In many cases where there was a destination-over it had been held that vesting took place a morte testatoris.

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