Scottish Court of Session Decisions

Mrs May Grant or Innes died in 1860 survived by one daughter Mary Innes. She left a trustdisposition and settlement dated 15th April 1842, in which, after providing for payment of debts, &c., she directed the trustees therein nominated to reserve unsold during the lifetime of her daughter, the said Mary Innes, for her use and accommodation, the household furniture and effects belonging to her, or such part thereof as they should think proper, and to give to her said daughter the use thereof during her lifetime, or from time to time, as her said trustees might consider fit; further, to realise and convert into cash the whole residue and remainder of her estate and effects, heritable and moveable, and to lend the same in one or more sums on such security, heritable or personal, as they should consider sufficient, and to make payment of the interest and annual profits thereof, or such part thereof as they should think proper, to or for behoof of her daughter the said Mary Innes during her lifetime. She further, after bequeathing certain legacies, some of which lapsed by the predecease of the legatees, disposed of the residue of her estate as follows:—“And with regard to the residue and remainder of my said estate and effects, heritable and moveable, above conveyed, remaining after the death of my said daughter, and after payment of the debts, expenses, provisions, legacies, and others foresaid, I appoint my said trustees or trustee to pay, assign, and make over the same, and any accumulations thereof, in such manner and way

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as I shall direct and appoint by any writing to be subscribed by me at any time hereafter during my life, and failing any such direction and appointment, then to my own nearest heirs, executors, and successors whomsoever.” She also left four codicils to this trust-deed dated respectively 23d June 1842, 28th May 1844, 5th August 1848, and 4th April 1850. By the codicils she bequeathed several legacies of money to domestic servants in her employment, to the guardians appointed to her daughter, and to acquaintances. She also left various specific articles by way of legacy, viz.—feather-beds, articles of jewellery, a picture, and a pianoforte and music. Some of the legatees received both pecuniary legacies and legacies of specific articles, others only the latter. The codicil of 1850 was in the following terms:—“I, May Innes, at present intend this to be my last codicil to my will. I leave and bequeath the following sums to Robert Green, son to Robert Green, Esquire, banker in Keith, one hundred pounds sterling, and I leave and bequeath to Mrs Anderson, wife of William Anderson, Esquire, Dell of Abernethy, by Grantown, fifty pounds sterling, as a small mark of my regard. I leave and bequeath to William Russell, son to Thomas Russell, Esquire, farmer in Pluscarden, by Elgin, fifty pounds sterling, along with the fifty pounds that I have before left to him, to be laid out in whatever his father thinks best for his benefit. I leave to the poor of Forres twenty pounds, to be given to the clergyman of the Established Church to be laid out in whatever way he thinks best. The money that I have bequeathed in my codicils I wish to be paid the first term after my death. If my dear daughter Mary does not require the interest of it, which I trust she will not, I hope my friend Mr Green, if he survives me, will see everything settled. And whatever more money I leave, after paying my lawful debts, to be divided amongst my legatees.—In witness whereof I have written this with my own hands, and subscribed the same at Forres the fourth day of April Eighteen hundred and fifty years.”

On the death of the truster's daughter Mary Innes, who died unmarried on 8th March 1879, the legacies which became due on that event were paid by the Rev. James Keith and others, her mother's trustees, and questions were raised as to the persons who were entitled to the residue of the trust-estate, amounting to £2932, 13s. 11d., viz., Whether these were—First, the “legatees” mentioned in the codicil of 4th April 1850, and if so, who were the “legatees” meant by that codicil? or second, the heirs, executors, and successors of the truster claiming under the residuary bequest in the trust-deed? There were also questions raised as to the period of the vesting of the residue.

This action of multiplepoinding was in these circumstances raised by the trustees. The parties entitled by survivance of the truster to pecuniary and specific legacies under the settlement and codicils were eight in number. William F. Russel, who was entitled to a legacy of £50 under the codicil of 1850, in addition to another legacy of £50 left to him by a previous codicil, claimed (1), on the assumption that the bequest to legatees contained in the codicil of 4th April did not vest till the death of the daughter of the testatrix, to be ranked and preferred along with the two other legatees under that codicil who survived that date to the fund in medio, pro rata, according to the amount of their several legacies, or alternatively to one-third of the fund in medio; (2) assuming that the bequest vested at the death of the testatrix, he claimed to be ranked and preferred along with the other legatees to the fund in medio in proportion to the amount of the respective legacies, or to an equal share of the fund along with the other legatees. A similar claim was made by Mrs Anderson, as a legatee under the codicil of 1850, and by her and her son as executors of Mr Anderson, a legatee under the codicil of 1848. The Rev. James Keith and another, as executors of Elizabeth Anderson, a legatee under the codicils of 1844 and 1848, as well as under the settlement, claimed that she was entitled to a share of the residue in virtue of the clause dealing therewith in the codicil of 1850. A similar claim was made by Mr Keith and another as being legatees of the testatrix who survived her.

Mrs Sophia Grant, nearest relative in blood alive at the death of the liferentrix, maintained that the fee vested at that date. She also maintained (1) that the words “whatever more money I leave,” &c., in the codicil of 1850 applied to the cash in the house, &c., and not to residue, or, in any view, that the codicil was void for uncertainty, and that the disposal of the residue fell to be regulated by the settlement. She therefore claimed the whole fund in medio, or if vesting should be held to be at the death of the testatrix, the share falling to her as one of the next-of-kin at that date.

Mrs Tapson and others, the next-of-kin of the testatrix, also maintained that the fee of the residue passed under the settlement, or, in any view, that the codicil was void from uncertainty, and claimed to be ranked as next-of-kin whether the period of vesting should be held to be the death of the testatrix or that of the liferentrix. They therefore claimed that the fund fell to be divided into twelve shares corresponding to the twelve great-grandchildren of the father of the testatrix or their issue per capita.

The Lord Ordinary (Kinnear) pronounced this interlocutor:—“Finds that the late Mrs May Grant or Innes, the testatrix, died in 1860, survived by one daughter Mary Innes, who died unmarried in or about 8th March 1879: Finds that, on a sound construction of the testamentary writings of the said Mrs May Grant or Innes, the persons entitled to the residue of her estate are those persons who stood in the relation of heirs in mobilibus to the testatrix at the date of her said daughter's death; therefore repels the claims for the claimants William Fairweather Russell, Mrs Elizabeth Duncan or Anderson, and others, the Rev James Keith and another (Miss Elizabeth Anderson's executors), and also the claim for the Rev. James Keith and William Innes: …. Finds the claimants Mrs Eliza Rannie Marquis or Tapson and others entitled to the shares of the fund in medio respectively claimed by them in the first alternative branch of their claim, and the claimant Mrs Sophia Rannie or Grant entitled to one-twelfth share of the fund in medio; and with these findings continues the cause in order that arrangements may be made for a final division of the fund among all the parties entitled thereto.

“ Opinion.—I think the sentence in the codicil directing that ‘whatever more money I leave

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after paying my lawful debts, to be divided amongst my legatees,’ cannot possibly be intended to be a direction as to residue of the kind contemplated in the settlement. It is a direction for disposing of such money as may be left by the testator, and available for being disposed of immediately on her death, and after her debts are paid. It appears to me, therefore, to dispose of the cash on hand, and must fall under that description, and I think that the only possible construction ever intended to be put on the bequest fortifies very strongly the view I take, because the words ‘to be divided amongst my legatees’ could not possibly be construed in any limited sense, there being no reason to exclude any one legatee or class of legatees from the general description in these words; and the obligation would therefore be to impute the whole residue among all the special legatees, which I think is absurd, having regard to the legacies and to the position of the several legatees.

The only other question is, what is meant by the words ‘then to my own nearest heirs, executors, and successors whomsoever?’ and, in my opinion, that means the persons who stand towards the testator in the relation of heirs of moveables at the date of the daughter's death. If it meant the heirs, executors, and successors of the testator herself as at her death, I think that would carry the whole estate to the daughter; and it is perfectly clear from the directions for the administration and management during the daughter's life that the testator did not intend the daughter to have the capital, and so to defeat the whole of those provisions in liferent. If it does not go to the next-of-kin at the testator's death, the only alternative is that the testator intended these persons to take the estate, and that is quite in accordance with the terms used, because the trustees are directed to pay what remains, after the death of the testator's daughter, to the testator's heirs, executors, and successors. The only question, therefore, that I think requires, not consideration, but a little attention, in adjusting the interlocutor, is the question of who these persons are who were at the date of the daughter's death in the position of heirs of moveables of the testator. There are a great number of them, and I should like to know again who represents them.

I hold that the words of the destination do not apply to the nearest relatives in blood, but mean the testator's heirs in mobilibus. That is why I am anxious it should be quite certain that we fix on the right people to take under that finding.”

William Fairweather Russell reclaimed, and argued—The codicil of 4th April 1850 was in the form of a residuary bequest, and disposed of the residue. The word “money” might embrace the whole of the personal property— Dunsmure v. Dunsmure, Nov. 22, 1879, 7 R. 261; Easson v. Thomas' Trustees, Nov. 22, 1879, 7 R. 251. Here it obviously had that meaning, and the word “more” meant “more than I have specifically bequeathed in my settlement and codicils. The division should be among the legatees found entitled equally, share and share alike— Pitcairn v. Thomson, 15 D. 741.

The next-of-kin argued—By the word “money” the testatrix meant money properly so-called that might be left over in the hands of her executors after paying expenses and debts. The word “more” referred to the immediately succeeding clause in the sentence, “after paying my lawful debts.” In the cases of Dunsmure and Easson the word “money” received its widest signification, but any other meaning would have resulted in partial intestacy. Here there could be no intestacy; only one period of time was referred to, viz., the death of the testatrix, and it was not reasonable to suppose that after setting apart the residue for her daughters' maintenance the testatrix would direct it to be divided among her legatees. Further, looking to the nature of many of the legacies, and the position of the legatees, the view was strengthened, for no distinction could be drawn between those taking legacies of money and those who received specific articles such as feather beds, pictures, &c. The only alternative was to hold the codicil, so far as it related to residue, void from uncertainty.

Mrs Sophia Rannie or Grant (who was one degree nearer in blood-relationship than any of the others called as next-of-kin) argued—If the residue went to the “nearest heirs, executors, and successors” under the settlement, and if vesting were postponed till the death of the liferentrix, she was then entitled to the whole fund in medio. The word “nearest” meant nearest in blood— Haldane's Trustees v. Sharpley, Dec. 15, 1881, 9 R. 269.

At advising—