Scottish Court of Session Decisions

William M'Culloch died on 24th January 1880, leaving a trust-disposition and settlement dated 26th May 1873, and relative codicils. By his trust-disposition he conveyed his whole estate, heritable and moveable, to Alexander Fleming and others, as trustees, for the ends, uses, and purposes following, viz.—“In the first place, for payment of all my just and lawful debts, sickbed and funeral expenses, and the expenses of executing this trust: In the second place, for payment of such legacies as I already have or may hereafter bequeath by any writing, however informal, under my hand: And in the last place, my trustees shall hold, apply, pay, and convey the whole rest, residue, and remainder of my means and estate, and the interest and produce thereof, equally to and for behoof of my brothers and sisters who may survive me, jointly with the lawful issue of any of them who may have predeceased me leaving issue, the division being per stirpes: Declaring that the right and interest of my youngest sister Isabella M'Culloch, presently residing at Brodick, Island of Arran, in the share original or accrescing falling to her of my means and estate shall be, and is hereby restricted to an alimentary liferent of said share, not affectable by the debts or deeds of herself or of any husband she may marry, or attachable by the diligence of her or his creditors, and the fee of the said share shall be held and applied for behoof of the lawful child or children of the said Isabella M'Culloch, equally among them if more than one, whom failing for behoof of my brothers and sisters who may be surviving at the date of her decease, jointly with the lawful issue of such of them as may have deceased leaving issue, the division being per stirpes; but notwithstanding the foregoing declaration, my trustees shall have full power and liberty to apply the whole or such part of the capital or fee of said share as shall be necessary, or they may think proper, for the alimentary support and benefit of my said sister and her issue, or any of them.” …

By holograph codicil dated 27th May 1876 he provided—“I hereby revoke and cancel all share that my brother Richard would have been entitled to from my last will (as prepared by Mr Cowan); and I also ordain that he is not to be made a trustee, or, in fact, have anything to do with my estate, heritable or moveable property, business, or anything I may have at my death, but that his family may not altogether suffer owing to the faults of their father, for which they are not (poor children) accountable for, I leave that share (that my brother Richard would have got had he conducted himself towards me with anything like a brotherly feeling, of which, I am sorry to have to say, he is totally wanting, both as to truth and gentlemanly demeanour) to his family (James, Agnes, and Gartshore) to be equally divided, under direction of my trustees (their father to have no say in the matter), James and Gartshore to get their share in full when they arrive at twenty-eight years of age, and Agnes to have her share vested in my business, property, or whatever security the trustees may think proper, so that she will only receive the interest on her share, and this interest is not to be given to her till she is eighteen years of age; should she die without lawful issue, her share to go back to my brothers and sisters (always exclusive of my brother Richard); should I die before James and Gartshore are twenty-eight years of age, the trustees to have full power to give their share to them in part or whole as they (the trustees) may deem proper… . Should James and Gartshore die without lawful issue, their share to revert to my brother and sisters, not brothers.”

The testator was survived by his brothers Richard and Alexander M'Culloch, by his sister Isabella M'Culloch, by three children of Richard, and the children of a deceased sister Mrs Taylor.

Isabella M'Culloch married James Dunn, and died without issue on 27th January 1890. After her death questions arose as to who were entitled to participate in the share of residue liferented by her, and a special case was presented by (1) Alexander Fleming and others, the testamentary trustees of the deceased William M'Culloch; (2) the children of Richard M'Culloch; (3) Alexander M'Culloch and the children of the deceased Mrs Taylor; (4) the trustee on the sequestrated estate of Richard M'Culloch—in order to obtain the judgment of the Court on the following questions—“(1) Is the fourth party, as Richard M'Culloch's trustee, entitled to one-third, or, if not one-third, to what (if any) part of the share of residue liferented by Mrs Dunn? (2) Are the second parties entitled to one-third of said share? (3) Are the third parties entitled to payment of the whole share of residue liferented by the late Mrs Dunn?”

Argued for the third parties—The codicil revoked and cancelled “all share” to which Richard was entitled under the will—that was, it deprived Richard of all right and interest in the testator's succession. But it did not transfer more than the share originally destined to Richard to his children. The will dealt separately with and distinguished from each other the original shares of residue and the share accrescing on the death of Mrs Dunn, and if the testator in his codicil had meant to deal with both, he would have dealt expressly with the accrescing share. The words “that share” in the codicil could not therefore be held to include Richard's proportion of the share which lapsed on Mrs Dunn's death, and the case belonged to the same category as M'Nish, &c. v. Donald's Trustees, October 25, 1879, 7 R. 96. An instructive contrast to that case was to be found in

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Laing v. Barclay, July 20, 1865, 3 Macph. 1143, where a child was held entitled to all that her parent would have taken on survivance, it being there expressly declared that the issue should “represent and be entitled to the proportion which would have been payable to their parent.” The suggested construction of the words “that share” was supported by the following clause of the codicil, which contemplated only one period of payment. The third parties were accordingly entitled to the whole of the share liferented by Mrs Dunn.

Argued for the second parties—By the codicil the testator first deprived Richard of “all share” that he “would have been entitled to,” and then gave “that share” which Richard “would have got” to his children. The words of gift were thus almost the same as those used in Laing v. Barclay, supra, and differed materially from the words used in M'Nish v. Donald's Trustees, supra, where the direction was that the issue should take the share of their predeceasing parent. The case was also outwith the authority of such cases as Young v. Robertson, February 14, 1862, 4 Macq. 337, because this was a case not of conditional institution, but of direct gift. The second parties were therefore entitled to one-third of the share liferented by Mrs Dunn.

No argument was offered in support of the claim of the fourth party.

At advising—