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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Curle's Trustees v. Millar and Others [1921] UKHL 21 (18 November 1921) URL: http://www.bailii.org/uk/cases/UKHL/1921/59SLR0021.html Cite as: [1921] UKHL 21, 59 ScotLR 21 |
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Page: 21↓
(Before
(In the Court of Session, May 28, 1920 S.C. 607, 57 S.L.R. 574.)
Subject_Succession — Will — Construction — “Survivors “ — “Survivors” read Stirpitally.
A testator directed his trustees to hold the residue of his estate for his son and two daughters in equal shares for their liferent use allenarly and their issue in fee. In the event of his son or daughter or any of them dying without leaving lawful issue the trustees were directed to hold the capital of the said shares for behoof of the survivors of his son and daughters if more than one, or for the survivor if only one, in the way already provided with regard to their original shares. The testator further provided that if any of his children should predecease him leaving issue, such issue should receive the capital which would have been liferented by their parent, and that if any of his children should predecease him leaving no
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issue their shares should be divided equally among his surviving children and the issue of predeceasing children per stirpes. The settlement further provided—“Failing any survivor of my said son or daughters or issue of any of them, I direct my trustees to pay over the said shares of my said son and daughters to their nearest heirs and representatives in moveables.” The testator was survived by his three children. The son died without issue, survived by the issue of a predeceasing sister and by the other sister and her issue. Held ( rev. judgment of the First Division) that the residuary clause read as a whole showed that the word “survivor” ought not to be construed in its ordinary sense, but was to be read “stirpitally''as meaning surviving in person or in stirps, and that accordingly the share liferented by the son did not fall exclusively to his surviving sister and her issue, but fell to be divided between the issue of his predeceasing sister on the one hand and his surviving sister and her issue on the other.
Wake v. Varah ( L.R., 2 Ch D 318) and Waite v. Littlewood ( L.R., 8 Ch. App. 70) approved and followed.
This case is reported ante ut supra.
The claimants, the children of Mrs Lamont, appealed to the House of Lords.
At delivering judgment—
By the opening provision of this deed the settlor vests in his trustees all his property and estates of whatever kind or nature, and then subsequently as to his residue directs that those trustees are to hold and retain it for the behoof of his son and his two daughters, share and share alike. If the disposition ended there his three children would probably take absolute interests in their respective shares, but the settlor then proceeds to show that that is not at all what he means by the word “behoof”; for he proceeds to direct that these shares are to he retained and invested by the trustees as thereinafter mentioned, “that is to say” the trustees are to “hold and retain and invest” these shares in their own names, as trustees for the respective liferent uses allenarly of his son and his two daughters, “and for the behoof of their lawful issue respectively in fee in such proportions among such issue respectively if there be more than one child, and whether there be one or more children subject to such restrictions and conditions as such son or daughters may respectively direct by any deed or writing under their hands or signed by them respectively to take effect at their decease respectively, and failing such appointment equally among such issue if more than one child, share and share alike.”
It is, I think, quite manifest from this passage that the purpose and intention of the settlor was that each of his children should take beneficially in his or her original share held by the trustees for his or her behoof nothing more than a liferent allenarly, and that the capital of those shares should be held for his grandchildren in the manner directed.
Mr Tomlin, as I understood him, contended, on behalf of the respondents in the appeal that under this disposition, which for convenience sake has in argument been styled clause 1, the settlor's three children took respectively in the first instance an absolute interest in the capital of their respective shares, that interest being subsequently cut down by the subsequent provisions. It would appear to me that this contention is quite unsustainable. The interests from first to last which the settlor's children take in their respective shares are liferents and nothing more—the fee, i.e., the capital of the shares, is to be held by the trustees for the behoof of the issue, i.e., the children of these children, the testator's grandchildren. That appears to me to be
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The language of clauses 3 and 4, though somewhat clumsy, is quite consistent with the intention of the testator as revealed in the preceding clauses 1 and 2. If one of his children should predecease him, leaving issue, the issue are to receive the capital of the provision which would have fallen to their parent in liferent—but if the predeceasing child should leave no issue then this same capital sum is to be divided equally between the testator's surviving children and lawful issue of any child who may have died leaving such issue, the issue, if more than one child, taking equally among them the shares, or proportions of shares, the liferent of which would have fallen to the deceased parents had they survived. This is the only provision I can find apparently designed to secure for one or more of the settlor's children any portion of the capital of the shares into which he divides his residue. Then follows after the word “survivor” an obscure provision. It runs thus—“to be paid over or held and retained subject to the same conditions and provisions as regards liferent and fee, and otherwise in every respect as are hereinbefore provided in reference to the shares of my children and their issue.” The object of this clause may have been to limit the interest the settlor's children were to take in the capital, apparently given to them by the immediately preceding provision, to a liferent or liferents with remainder to their respective issue.
The last clause (5) is, I think, merely designed to prevent intestacy. It would appear to me, therefore, that on the true construction of clauses 1 and 2 (clauses 3 and 4 do not apply) in order to effect the clearly expressed intention of the settlor, it is necessary to construe the words “survivor or survivors,” not in their ordinary and proper sense, but in the sense of those who survive either in person or figuratively in issue.
For these reasons I think the appeal succeeds, that the judgment appealed from was erroneous and should be reversed, and the judgment of Lord Blackburn restored, and this appeal be allowed.
As to the will itself, I think misconstruction is apt to arise unless the whole of the residuary clause of the will be read together. This is a sound principle, and in many cases it removes by an adequate conspectus the error which is apt to arise from the selection and segregation of individual expressions and phrases. The present will appears to me to afford a good instance for the sound application of this principle.
In the clause itself I attach much importance to the first portion of it, which is a broad direction that the trustees ought to hold and retain the residue for the three children, share and share alike—“that is to say,” that the trustees are to hold and retain and invest the shares for the “life-rent use allenarly” of the children, and “for behoof of their lawful issue respectively in fee,” with power to each child to apportion among their respective issue and to impose restrictions and conditions upon the grandchildren. It appears to me that this part
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The second part of the clause dealt with the event “of my son or daughters or any of them dying without lawful issue, or of such issue all dying before majority or marriage.” In that case the trustees were directed to hold and retain the fee or capital of the said shares “for behoof of the survivors of my said son and daughters, … and in the event of only one surviving, for his or her behoof in the same way as is hereinbefore provided with regard to the shares originally taken by the said survivors or survivor in their own right.” It is to be noted that there were no shares taken in any absolute sense by the survivors or survivor in their own right, none. It appears to me accordingly not to be doubtful that the second part of this clause and the words above stated, i.e., “in the same way as hereinbefore provided,” is made to point to just that division into shares taken stirpitally according to that paramount direction to which I have referred. After full consideration of the clause I do not think that any other meaning can be attached to survivors than survivors in this stirpital sense.
I cannot agree with the learned Lord Ordinary that the word “others” must be substituted for the word “survivors.” It is sufficient to construe survivors by the application of the idea of the division of the estate into three shares enjoyed in liferent and fee as prescribed, and when one share lapses at the death of the liferenter then the other shares take it up equally between them. If accordingly the state of the other shares be that they are enjoyed by the issue of a predeceasing liferenter—that is to say, by the fiars of that share—and the second share is held for behoof of a surviving liferenter and the issue of that liferenter in fee, then the division takes place according to the idea, and in my opinion according to the prescription, of the will. The respondent's argument was that in those circumstances the children who are in fee enjoying one share are not to have half of the lapsed share equally with the other share still enjoyed in liferent. This would be to make out of the death of the liferenting parent a distortion of the succession so disturbing as this, that the half-lapsed share would go past one of the families because their parent had died, and the whole, and not the half, would be succeeded to by the other family because their parent was still alive. I cannot bring my mind to think that that was the testator's intention, and it requires no straining whatsoever of words, according to the view which I take, to interpret the words of survivorship in the stirpital sense, thus producing the equality of division and right which appears to me to have been what the testator aimed at when he used the words “in the same way as is hereinbefore provided” in the governing portion of the clause to which I have already alluded. The third part of the residuary clause deals with the case of children predeceasing the testator and leaving lawful issue. In that case the issue take the predeceasing parent's share. The fourth part provides that if no lawful issue is left, then the lapsed share is divided on identically the same principle although the expression of the division is more amply worded, and the issue plainly come in as takers by survivorship irrespective of the fact that their parent was dead. The clauses have been cited to your Lordships at length in the judgment which has preceded mine.
I entirely agree with Lord Skerrington's observation in his judgment to the effect that “in every case of this kind the question is whether the text of a bequest to ‘survivors’ and the general scheme of the will would either of them afford conclusive evidence that the bequest was intended to benefit every child of the testator who should survive a particular event either in his own person or in that of a descendant.” I think that material is found within the residuary clause itself, taken as a whole, to answer that test and afford that evidence. “It is necessary,” said Lord Kinnear in Ward v. Lang ( 20 R. 953), “in the first place to find from the intentions of the will, apart from the clause immediately under consideration, some reason for holding that the literal language of that clause is inadequate to express the full meaning of the testator, and then to find in the will some clear intention to do something different from what a literal interpretation of the clause would infer.” In my opinion the residuary clause now under construction itself contains within its provisions ample material for satisfying that test. There are, as it appears to me, abundant indications that the word survivors was meant in the comprehensive and family sense which is known as stirpital, and that the will could not be interpreted justly as the will of the testator by a more restricted view of the language which is employed.
By the first clause the testator gives his residue in trust for behoof of his three children equally, “to be retained and invested as
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Mrs Lamont died in 1909 leaving children. Robert Barclay Curie died a bachelor in 1916. Mrs Millar was the survivor of the three children of the testator. She died very recently leaving two children. Mrs Lamont's share, of course, went on her death to her children. When Robert Barclay Curie died one-half of his share went, of course, to the Millar family. The question is whether the other half went also to the Millar family or to the Lamont children. I need not quote the second clause. In commenting upon it I shall assume that the reader has it before him. The testator there gives the capital of the share of the child who dies without issue “for behoof of the survivors of my said son and daughters equally among them, share and share alike if more than one, and in the event of only one surviving for his or her behoof.” If this were all, the result would be that the accruing share would be given, not in settlement but absolutely in fee to the surviving child or children. But the testator continues—“In the same way as is hereinbefore provided with regard to the shares originally taken by the said survivors or survivor in their own right.” There was no share originally taken in fee by a child in his or her own right. The share was given in settlement and the child was but a life-renter. The survivor therefore who is here spoken of as taking in his own right is not the child to the exclusion of his or her issue, but the stirps of which the child as a liferenter and the issue as absolute owners in reversion were the beneficiaries taking “as is hereinbefore provided.” Prom this it is plain that the word “survivors” and the words “his or her” cannot mean children to the exclusion of issue, but must mean the stirps in which the child is parent of the issue. The words are “for behoof of the survivors” or “for his or her behoof” in the same way as is hereinbefore provided. That which had been “hereinbefore provided” was not a gift to the child to the exclusion of the issue, but a gift to the child as liferenter and then to the issue as absolute owners. Both, however, are included under the expression “for behoof of the survivors” or “for his or her behoof,” for if they are not so included there are no words expressive of the behoof of the issue. These words in this context necessarily mean for behoof of him or her and his or her issue. If the third clause stood alone I should be of opinion that it is impossible to give effect to the testator's words except by holding that the word “survivor” here is not confined to survivorship of the child but extends to what has been called stirpital survivorship—that is to say, survivorship of the child or his stirps. Attention, however, is called, and quite rightly, to the fact that in clause 4 the testator uses language more accurate than that found in clause 2 to state the mode of devolution of the share of the child who dies leaving no lawful issue. The event of course is different. In clause 2 the event of death without leaving lawful issue may happen at any time. In clause 4 it is an event which will have happened in the testator's lifetime. In the latter case (clause 4) the gift is an original, not a substitutionary, gift. In the former case it is a substitutionary gift to take effect in a named future event if it shall occur. Whether this difference of fact is sufficient to account for a difference of language it is not necessary to inquire. It remains that it is the language of clause 2 that has to be construed, and the language of clause 4 assists me little if at all in the matter.
The case does not end here. There is a gift-over, and I must consider its effect. I again assume that the text of the clause, viz., clause 5, is before the reader—“Failing any survivor of my said son and daughters or issue of any of them.” What do these words mean? If I use the phrase “failing any survivor of A, B, and C,” what is my meaning? There must be a survivor, for someone of them must be the last to die. Say that they die in the order A, B, C. Then C is the survivor, and the fact that he died last is a fact not only at the moment
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This testator by clauses 1 and 2 had provided for a certain event, viz., the event of his three children surviving him; by clauses 3 and 4 he had provided for another event, viz., the event of the children or some or one of them predeceasing him. By clause 5 he directs that which is to happen “failing any survivor of my said son and daughters or issue of any of them.” I do not understand the ground on which it can be maintained that clause 5 is addressed only to clauses 3 and 4 and not to clauses 1 and 2. It names an event, and says what is to happen in that event. The event is the failure—that is, the non-existence of a living person—of any survivor of his son and daughters or issue of any of them. From this it is to be inferred that he thought that so long as any son, daughter, or issue was living he had already disposed of the property. But if the respondents are right, and if the last survivor of his son and daughters did not leave issue, he had not disposed of it. The previous language ought to be construed (if it will bear the construction) so as to give effect to this fact, and this results if survivor is read in the sense of stirpital survivorship. Moreover, the construction which the respondents put upon the gift-over is so extravagant as not to be admissible. Inserting after the word “failure” the words “at my death,” they say the testator gives to the nearest heirs and representatives in moveables at that time of his children and their issue. But they being all dead that would lead only to a reverter to himself. The view I take is one which attributes to him a sensible meaning, viz., that there shall be no intestacy so long as any child or issue of a child is in existence who can take.
In my judgment upon the words of this will, and upon the principles of Wake v. Varah ( 2 Oh. D. 348) and Waite v. Littlewood ( L.R., 8 Ch D 70), this appeal succeeds, and one-half of the share of Robert Barclay Curie passed after his death to the children of his sister Mrs Lamont, who had predeceased him.
Their Lordships ordered that the interlocutor appealed from be reversed, that the interlocutor of the Lord Ordinary be restored, and that the costs of all parties here and below be paid out of the fund in medio.
Counsel for Appellants— Maughan, K.C. Christie. Agents— Boyd, Jameson, & Young, W.S., Leith— Stibbard, Gibson, & Company, London.
Counsel for Respondents— Macmillan, K.C.— Tomlin, K.C.— Henderson. Agents— James Gibson, S.S.C., Edinburgh— Church, Rackham, & Company, London.
