Scottish Court of Session Decisions

Thomas M'Clymont, who died unmarried on 16th February 1883, left a holograph will or testament dated 19th February 1880, by which he ordained his executors nominated under the will to pay over the residue of his estate as follows:—“One-third of said residue to be invested in railway debentures or railway preference shares in name of Agnes Smith or Osborne, wife of George Osborne, my niece, she to receive the interest or dividends from same during her lifetime for the maintenance, upbringing, and education of her children, and at her death the principal to be divided equally among her children except George and Thomas, who are provided for in this will otherwise; declaring, however, that the principal is not to be divided until her youngest child is twenty-one years of age in the event of her dying before that term.”

The capital sum represented by the one—third of residue in question was invested by the executors in railway preference or debenture stock, and amounted to £3800, and the revenue was not less than £140.

At the dates of the execution of the said will and at the death of the testator, Mrs Osborne's family consisted of six children,

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viz.—(1) Joseph Smith Osborne, born on 26th February 1873, who died in July 1883; (2) Margaret Rorison Smith Osborne, born on 3rd December 1867, who died on 27th February 1886; (3) Marion Josephine Smith Osborne, born on 17th January 1870, who died on 28th June 1886; (4) George Smith Osborne, born on 24th July 1860, and (5) Thomas M'Clymont Osborne, born on 25th January 1865, being the second parties to this case; and (6) John M'Clymont Osborne, the third party to this case, who was born on 29th March 1876.

At the dates of their respective deaths, Joseph, Margaret, and Marion Osborne were all minors, and none of them left any testamentary writings.

Mrs Osborne died on 11th February 1888 intestate, and her husband Mr Osborne on 28th April 1888, also intestate.

After Mrs Osborne's death the executors applied part of the revenue of the said one—third share of residue in the educating and maintaining of John M'Clymont Osborne, and they added the surplus income to the principal sum, which they still held.

In these circumstances a special case was presented by (1) Mr M'Clymont's executors; (2) George Smith Osborne and Thomas M'Clymont Osborne; (3) John M'Clymont Osborne and his curator, in order to obtain the opinion of the Court on, inter alia, the following questions of law “(1) Did the fee of one-third share of the residuary estate of Mr Thomas M'Clymont vest at his death in his niece, Mrs Agnes Smith or Osborne, free of any trust? (2) In the event of the first question being answered in the affirmative, did the third party, John M'Clymont Osborne, succeed in terms of the said testament to the fee of the said one-third share, upon the death of Mrs Agnes Smith or Osborne intestate, and without having disposed of any part thereof during her life?”

Argued for the second parties—Mrs Osborne's right was a liferent, or she held the fee of the third share in trust for herself in liferent, and her children nascituri in fee. The fee vested in the children a morte testatoris, and the second parties were entitled as next-of-kin to take equally with the third party the portions of the residue which had vested in their deceased brothers and sisters. The share of residue in question might be stated at £3800, of which under this contention one-fourth or £950 admittedly belonged to the third party. But according to their contention three-fourths or £2850 were vested in the three deceased children, and at their death half of that sum vested in the father, and the other half vested equally in each of the surviving children. On the death of the father intestate in April 1888 his share also vested equally in the surviving children, and therefore the second parties were each entitled to one—third of the £2850, or £950 each— Frog's Creditors v. His Children, 1735, 3 Ross's L. C. (Land Rights), 602, was decided on doubtful principles to satisfy a technical rule of feudal law. The judgment in that case must not be extended to cases like the present, where the words of the destination were not the same, and the intention of the testator was plain— Ramsay v. Beveridge, March 3, 1854, 16 D. 764; Main v. Taylor, June 8, 1827, 5 S. 727. The phrase, “She to receive the interest or dividends from same during her lifetime,” was equal to the word “allenarly.” The mother therefore only got the liferent, and the fee vested in the children who were alive at the testator's death— Newlands v. Newlands' Creditors, 1798, 3 Ross's L.C. (Land Rights), 634; Michel's Judicial Factor v. Oliphant, December 7, 1892, 20 R. 172; Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142, contrasted with Forbes v. Luckie, January 26, 1838, 16 S. 374; Hay's Trustees v. Hay, June 19, 1890, 17 R. 961, opinion of Lord Shand, 968; Home's Trustees, July 14, 1891, 18 R. 1138. In the event of its being held that the fee of the estate vested in Mrs Osborne, the second parties claimed to take the one-third share of the residue along with the third party equally as heirs ab intestato of their mother.

Argued for the third party—(1) At the death of the testator the fee vested in Mrs Osborne subject to a substitution in favour of the children, other than the second parties, who might survive her, in the event of her not disposing of the fee during her lifetime. Mrs Osborne having died intestate without having disposed of any part of the fee during her life, the third party being the only child alive at her death other than the second parties was entitled to the whole fee of the estate in terms of the substitution contained in the will. There was no word “allenarly” in the destination, or any words equivalent to “allenarly.” The case therefore fell under the rule laid down in Frog's Creditors. If the argument of the other side was upheld a destructive blow would be given to Frog's Creditors. [ Lord Rutherfurd Clark—I should not be very much grieved if the blow was to kill Frog], The cases of Lindsay v. Dott, 1807, M. voce Fiar, App. 1; and Murray v. Scott's Trustees, December 5, 1872, 11 Macph. 173, was also in point. (2) Alternatively, if the mother took the liferent only, the fee vested, not a morte testatoris, but at her death, and the third party being the only child other than George and Thomas surviving at her death, he took the whole fee—Bryson's Trustees, supra; Lord Trayner's opinion in Boyle's Trustees v. Cochrane, November 29, 1892, 20 R. 113.

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