Scottish Court of Session Decisions

Lord Kinnear—The questions in this case arise on the construction of the trust-disposition and settlement of the late Henry Roberts, a manufacturer in Galashiels, who died on the 23rd of May 1891. The special case concludes with a number of specific questions, but the parties are agreed that all of these depend upon the way in which three main questions may be determined. The first of these three principal questions turns upon the meaning and effect of the second codicil. By this codicil, which is dated 29th August 1887, the testator directs his trustees, upon the youngest of the sons born or that might be born to him reaching the age of twenty-one years, to convey and make over to them, equally among them, all mill property and machinery and all house or other heritable property in Galashiels (with the exception of his dwellinging-house there) belonging to him at the time of his death, with certain directions to provide for the event of one or more of the sons desiring to have their shares in cash. This direction is modified in one respect by the third codicil, by which the testator declares “with regard to the second codicil,” that his “son William shall at the first term of Whitsunday or Martinmas that shall happen after he reaches the age of twenty-five years be entitled to his third share of the rents of the mill property and machinery and all house or other heritable property in Galashiels, with the exception of the dwelling-house there.” The testator had three sons—William John, Henry Lucas, and Hugh Sanderson, and the effect of the two codicils taken together is that the property is to be conveyed to them equally upon the youngest attaining twenty-one, but that William, the eldest, is to have his third share of the rents when he reaches twenty-five, irrespective of the minority of his younger brothers at that time. If the three brothers, who all of them survived the testator, had all of them lived to attain the age of twenty-one, there would probably have been no difficulty in carrying out this direction. But the youngest, Hugh Sanderson, died in minority on the 13th March 1900; and the question in dispute is whether in consequence of his death the two surviving sons are entitled to the whole property carried by the codicils, or whether the third share originally destined to him falls into residue. Nobody suggests that any right in this share has vested in Hugh Roberts. But it is maintained, on the authority of Paxton's Trustees v. Cowie, that there can be no accretion as among the sons, and therefore that the share which has lapsed by the predecease of one of them must either fall into residue or pass to the testator's next-of-kin as intestate succession. That decision illustrates an important but limited principle that “when a legacy is given to a plurality of persons named or sufficiently described for identification equally among them,” or “in equal shares,” or “share and share alike,” or in any language of the same import, each is entitled to his own share and no more, and there is no room for accretion in the event of the predecease of one or more of the legatees. I rather think that in stating the condition that the persons favoured must be named or sufficiently described for identification, the Lord President meant individually named or identified. For he cannot have intended merely the condition common to all legacies and indispensable for their validity, that the legatees must be capableof identification; and, on the other hand, the purpose of his statement was to distinguish between legacies of shares to individuals and a legacy of a common fund to a class. But however that may be, the rule is, in my opinion, applicable only to cases where the testator's intention is to give a separate legacy, payable out of a certain fund, to each of a plurality of persons. The doctrine is very clearly explained by Lord M'Laren in Menzies v. Menzies, where he says—“If a testator gives £5000 to five persons by name, adding the words ‘share and share alike,’ according to the ordinary use of language it is the same thing as if he said—‘I give £1000 to A and £1000 to B’ and so on, the only difference being that in the case supposed the testator begins by using words descriptive of the entire sum which he means to bequeath, and then adds words explaining that he does not intend a joint bequest but a series of separate bequests.” His Lordship adds that the rule may be displaced by plain indications that the testator meant a joint bequest, in which case, of course, the survivor will take the whole by accretion; and he gives as a familiar example the case of a legacy to a family, the individuals not being named, in which case the words “equally” or “share and share alike” are superfluous. I think it clear that the legacy now in question is of the character thus distinguished by Lord M'Laren from those to which the rule in Paxton v. Cowie is applicable. It is manifest that the testator did not intend a series of separate legacies but a joint legacy to a class, because he assumes that the persons who may ultimately turn out to form the class are not yet ascertained at the date when he makes his bequest. It is a bequest in favour of the sons born or that may be born to him, and it is to be carried into effect by a conveyance which the trustees are directed to make to them equally among them at a specified date, to wit, when the youngest son attains the age of twenty-one. That is, in my opinion, a bequest to a class as it may be constituted at the date of distribution. It makes no difference that the conveyance is directed to be made to them “equally among them,” because that expression does not necessarily import a separation into specific shares. If a legacy is given to a family jointly without naming or enumerating individuals, it must either be given equally or in specific proportions, and if it be clear, as in this case it certainly is, that the testator had no definite proportions in his mind, because he did not know how many persons might participate, it is of no consequence whether an equal division is expressed in terms or not. Nor is it, in my opinion, of any importance

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