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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stopford Blair's Trustees and Others, Petitioners. (For Opinion of the Court.) [1872] ScotLR 9_490 (31 May 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0490.html Cite as: [1872] ScotLR 9_490, [1872] SLR 9_490 |
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Page: 490↓
Held that a bequest of £1000 to each of the children of the testator's daughter by her present marriage was limited to children in existence at the death of the testator, and did not include a child born after that date.
This was a case for the opinion of the Court of Session, remitted by the Court of Chancery in England, arising out of certain proceedings in that Court regarding the distribution of the estate of the late Lieutenant-Colonel W. H. Stopford Blair of Penninghame.
Colonel Stopford Blair died 20th September 1868, leaving large heritable and moveable property. He was survived by a son, Edward James Stopford Blair, now of Penninghame, and a daughter, Elizabeth Ellen, who was married in 1847 to Edward Heron-Maxwell. By antenuptial contract between Mr and Mrs Heron-Maxwell, to which Colonel Stopford Blair was a party, the latter bound himself to provide £10,000 for the spouses and the survivor in liferent, and for the children to be procreated of the marriage in fee.
In May 1848 Colonel Stopford Blair executed a last will and testament, by which he bequeathed two further sums of £10,000 each, after certain liferents, to be disposed of in the same manner as the sum provided in the marriage contract of his daughter.
In June 1857 the testator added a codicil to the will, containing the following bequest:—“I bequeath to each of her (Mrs Heron-Maxwell) children by this her present marriage £1000 each, free of duty. but to be placed at the discretion of the marriage trustees for their special benefit while under age.” He also directed the residue of his personal property at the demise of all the annuitants to be divided between his two children.
On 10th August 1866 he executed a second codicil:—“Having intimated to my son-in-law, E. H. Haxwell, my desire to relieve him of the heavy burden of his insurance (viz. £280) on his life for £8000, to be paid over at his death for the benefit of his family, I hereby bequeath that the clear sum of £8000 be at due time paid over from the residue of my property for the purpose intended.”
There were nine children of the marriage between Mr and Mrs Heron-Maxwell at the date of the testator's death. Another, Margaret Emily, was born 19th July 1870.
It was agreed that Colonel Stopford Blair should be held to be a domiciled Scotchman at the date of the will, and thenceforth down to his death.
The questions submitted to the Court were the following:—
“Whether, according to the law of Scotland, the said Margaret Emily Heron Maxwell and any other child of the marriage of the said Edward Heron-Maxwell and Elizabeth Ellen, his wife, born after the death of the testator, is entitled to a legacy of £1000 under the bequest set forth in the 3d paragraph of this case? Or
Whether such bequest is limited to the children alive at the death of the testator?”
Page: 491↓
The parties, viz.,—(1) The testamentary trustees of Col. Stopford Blair; (2) The marriage-contract trustees of Mr and Mrs Heron-Maxwell; (3) Mr Heron-Maxwell as administrator in law for Margaret Emily Heron-Maxwell, his youngest child,—presented a petition under 22 and 23 Vict. c. 63.
Solicitor-General and Marshall, for the second and third parties, argued that the word “children” in codicil of 1857 must receive the same meaning as in the will itself, where the word undoubtedly meant the whole children of the marriage, whether born before the testator's death or not. The provisions of the will in regard to annuities, and especially the bequest of £8000 by the second codicil, which was not to be paid till Mr Heron Maxwell's death, showed that the testator contemplated a long continuance of the trust created by his will, and removed any presumption in favour of limiting the bequest of £1000 each to the children in existence at his death, which might have arisen had he directed immediate distribution of his estate.
Shand and Balfour, for the first parties, maintained that the bequest of £1000 each was limited to the children in existence at the death of the testator; Davidson's Trustees, 15th July 1871, 9 Macph. 995; Wood, 18th January 1861, 23 D. 338; M'Dougall, 6th February 1866, 4 Macph. 372.
The Court answered the first alternative in the affirmative, and the second in the negative.
Solicitors: Agents for First Parties— Tods, Murray, & Jamieson, W.S.
Agents for Second and Third Parties— J. C. & A. Steuart, W.S.
