Scottish Court of Session Decisions

Miss Mary Carnegie Cumming, who died on 26th March 1869, left a trust-disposition and settlement by which she disponed to trustees her whole estate, heritable and moveable, and inter alia directed—“(Thirdly) That my said trustees may, as soon after my death as they conveniently can, lend and place out on good security, heritable or moveable, the sum of £1300 sterling, and pay and divide the annual interest to be derived therefrom equally between my nieces Jane May Cumming Anderson and Isabella Robina Anderson, residing at Newtyle Cottage, during their joint lives, exclusive always of the jus mariti and right of administration of any husband they may marry, and declaring that the receipts of the said Jane May Cumming Anderson and Isabella Robina Anderson alone for the said interest shall be valid and sufficient to the receivers: Providing that on the death of either of the said Jane May Cumming Anderson or Isabella Robina Anderson without lawful issue the whole of the said annual interest shall be paid to the survivor; but in case either shall die leaving lawful issue, then such issue shall be entitled to their parent's share of said interest; and upon the death of the survivor one-half of the said sum of £1300 shall be paid by the said trustees to the lawful issue of each of the said Jane May Cumming Anderson and Isabella Robina Anderson; but providing and declaring always, that if either or both of the said Jane May Cumming Anderson and Isabella Robina Anderson shall die without leaving lawful issue, then the half or the whole of said £1300, as the case may be, shall on the death of the survivor, be paid by the said trustees to my brother the said Robert Cumming.”

The clause dealing with residue was as follows:—“With regard to the residue and remainder of my estate, heritable and moveable, real and personal, above conveyed, I direct the said trustees, at and immediately after the decease of the said Alexander Cumming, to pay and assign the residue (and including the sums liferented to the said Alexander Cumming) to and in favour of the said Hugh Macpherson Cumming and Robert Cumming, and their heirs, executors, and successors whomsoever.”

The sum of £1300 which the testatrix directed to be invested for behoof of her nieces was invested by the trustees, and the interest was paid to them equally down to the death of Miss Isabella Robina Anderson, who died unmarried in May 1873, after which date Miss Jane May Cumming Anderson received the whole income. Robert Cumming died in October 1894, leaving a will by which he bequeathed his whole estate to Miss Jane May Cumming Anderson.

Questions having arisen as to the effect of the bequest of £1300, a special case was raised by (1) Miss Cumming's testamentary trustees; (2) Miss Jane May Cumming

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Anderson; (3) Mr Hugh Macpherson Cumming, one of the residuary legatees in Miss Cumming's will; and (4) the representatives of the heirs in mobilibus ab intestato of Miss Cumming.

The second party contended that the bequest vested in Robert Cumming a morte testatoris, subject to the liferents, and subject to defeasance quoad the half or whole in the event of either or both of the liferentrices leaving lawful issue; that on the death of the first liferentix his right to one-half of the bequest became absolute; and further, that by virtue of his will in her favour (the second party), had acquired an absolute right to one-half. She offered to renounce her liferent quoad this half, and called upon the trustees on receiving her discharge to pay it over to her as her absolute property.

The contentions of the third and fourth parties appear from the arguments infra.

The questions for the consideration of the Court were—“(1) Did the legacy of £1300, contained in the third purpose of Miss Cumming's will, vest in Robert Cumming a morte testatoris, subject to the liferents, and subject to defeasance to the extent of one-half in the event of Isabella Robina Anderson leaving issue, and to the extent of the other half in the event of the second party leaving issue? (2) Did one-half thereof vest absolutely in Robert Cumming at the death of Isabella Robina Anderson without issue, subject to the liferent of the second party in such half? (3) Is the second party now entitled to payment of one-half of the said sum of £1300 for her own absolute use and behoof on renouncing and discharging the liferent thereof?”

Argued for second party—The rules on vesting subject to defeasance laid down in Steel's Trustees v. Steel, December 12, 1888, 16 R. 204, as commented on in Turner v. Gow, February 20, 1894, 21 R. 563; and Wright's Trustees v. Wright, February 20, 1894, 21 R. 568, were applicable to the present case. The fact that the liferent was split up between two beneficiaries in no way prevented the application of the rule. Accordingly, there vested in Robert Cumming a morte testatoris a right to the fee of the whole bequest, subject to defeasance in the event of the liferentrices leaving issue. On the death of one without issue the right to the fee of her half vested absolutely in Robert Cumming. Accordingly, the second party as his sole legatee was entitled on renouncing her liferent to immediate payment of that half.

Argued for the third party—1. Vesting was postponed till the death of the liferentrices, there being no direct words of gift to Robert Cumming. The absence of such words was an important element in showing that vesting was postponed— Taylor v. Gilbert's Trustees, July 12, 1878, 5 R. (H. of L.) 217; Bryson's Trustees v. Clark, November 20, 1880, 8 R. 142; Storie's Trustees v. Gray, May 29, 1874, 1 R. 953. 2. If there were vesting a morte testatoris, it must be in the residuary legatees— Storie's Trustees v. Gray, supra.

Argued for the fourth parties—There was no vesting in Robert Cumming either a morte testatoris or on the death of the first liferentrix. That being so, it was evidently the intention of the testatrix that this bequest should not be included in the residue clause, for she particularly mentioned in that clause the fund which was to be liferented by Alexander Cumming, and omitted to mention this. Moreover, she could not have intended that this fund should go to Robert Cumming first as a direct legacy, and secondly, as part of the residue. Accordingly, it fell into intestacy.

At advising—