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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marquis of Tweeddale's Trustees v. Marquis of Tweeddale and Others [1905] ScotLR 43_193 (16 December 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/43SLR0193.html Cite as: [1905] SLR 43_193, [1905] ScotLR 43_193 |
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(Before
A testator by his trust-disposition and settlement directed his trustees “to make payment” at a certain term after his death of a certain sum to each of his daughters, “but … subject always to the provisions, declarations, powers, directions, and others hereinafter written.” In a subsequent purpose of the settlement he provided and declared that, “notwithstanding anything to the contrary herein before written,” the trustees were to “set aside and hold and retain and invest in their own names,” as trustees, the several provisions granted to each of his daughters for behoof of the daughters “in liferent for their respective liferent uses allenarly … and for behoof of their respective children equally among them in fee.” The jusmaritt and right of administration of the daughters’ husbands were excluded, and the daughters’ liferents were declared to be alimentary and not liable to the diligence of creditors. There was no destination-over of the daughters’ shares in the event of their dying without issue.
Held (1) that the daughters took a fee of the sums directed to be paid to them respectively, which was reducible to a liferent only in the event of their having issue, and (2) that on the death of a daughter without issue her share fell to be disposed of as part of her moveable estate.
The late Marquis of Tweeddale died on 10th October 1876, leaving a trust-disposition and settlement dated 9th April 1870, which, with various codicils, was registered in the Books of Council and Session on 18th October 1876.
The trust-disposition provided as follows—(Fifth purpose)—“I direct and appoint my trustees to make payment at the first term of Whitsunday or Martinmas that shall happen six months after my decease, to each of my daughters Elizabeth Duchess of Wellington, Lady Louisa Jane Wardlaw Ramsay, Lady Hannah Charlotte Watson Taylor, Lady Emily Peel, and Lady Jane Taylor, of the sum of £8500; to my daughter Lady Julia Hay of the sum of £13,500; to each of my sons Lord William Montagu Hay and Lord John Hay of the sum of £505; and to each of my sons Lord Charles Edward Hay and Lord Frederick Hay of the sum of £13,995; the lawful issue of any of my said children who may predecease me leaving issue coming in place of their parents, and taking equally among them the said sums which would have been payable to their deceased parents if in life, but subject always, in the case of my sons the said Lord Charles Edward Hay and Lord Frederick Hay, and my said whole daughters, to the provisions, declarations, powers, directions, and others hereinafter written applicable to them respectively.” (Seventh purpose)—“I direct and appoint my trustees (subject always as regards any provisions falling to my sons the said Lord Charles Edward Hay and Lord Frederick Hay, and my said whole daughters, to the provisions declarations, powers, directions, and others hereinafter written applicable to them respectively) to pay, convey, and make over, as soon as conveniently may be, after implement and fulfilment of the preceding purposes of this trust, the whole residue and remainder of my said means and estate, heritable and moveable, real and personal, to my son the said Viscount
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Walden, in the event of his surviving me, and in the event of his predeceasing me then to the heir-male of his body succeeding to the foresaid entailed estates; and in the event of the said Viscount Walden leaving no such heir-male of his body, or if such heir-male of his body shall predecease me, then to the whole of my other children (other than and except the heir of entail succeeding to said entailed estates) alive at the time of my death, and the lawful issue of such of my children (other than the said heir of entail) as shall have predeceased me leaving lawful issue, equally among them, share and share alike, such issue coming in place of their parents and taking equally among them the shares which would have fallen to their deceased parents if in life; providing always, and declaring in regard to the several provisions herein conceived in favour of my said sons Lord Charles Edward Hay and Lord Frederick Hay, as it is hereby expressly provided and declared, that notwithstanding anything to the contrary hereinbefore written my trustees shall set aside and hold and retain and invest in their own names as trustees foresaid the several provisions hereby granted to each of my said sons Lord Charles Edward Hay and Lord Frederick Hay, and shall during all the years of their respective lifetimes after my decease apply the interest or other annual produce thereof as an alimentary fund for their use and behoof respectively: With full and ample power to my trustees either to pay the said interest or other annual produce, or so much thereof as my trustees shall think proper, to my said sons Lord Charles Edward Hay and Lord Frederick Hay respectively, or to apply the same, or so much thereof as my trustees shall think proper, for their use and behoof and for their proper support and maintenance, the remainder being accumulated for their use and behoof respectively and added to the capital of their said provisions, and also if my trustees shall deem it expedient and proper to give or make over to either of my said sons Lord Charles Edward Hay or Lord Frederick Hay the whole or any part of their said respective provisions, including any accumulations of interest or annual produce added thereto: With full power also, if my trustees shall think it necessary or expedient, to invest the capital of the said provisions, or either of my said sons Lord Charles Edward Hay or Lord Frederick Hay, including any accumulations of interest or annual produce added thereto, in the purchase of an alimentary annuity for either of them, or otherwise to encroach upon the capital of such provisions and accumulations for their proper support and maintenance: Declaring always that neither of my said sons Lord Charles Edward Hay and Lord Frederick Hay shall be entitled to control my trustees in any way whatsoever in the exercise of the powers hereby given to them in relation to the foresaid provisions, it being my desire that the matter shall be left entirely to the discretipn of my trustees, and that they shall not be responsible to any one for the exercise or non-exercise of the said powers or any of them; and declaring further that the said several provisions hereby granted to my said sons Lord Charles Edward Hay and Lord Frederick Hay respectively, and the interest and produce thereof, are and shall be strictly alimentary, and shall not be assignable or capable of anticipation by them or attach able by the diligence of their creditors; and upon the respective periods of decease of my said sons Lord Charles Edward Hay and Lord Frederick Hay, without leaving lawful issue, I direct and appoint my trustees to pay and make over the capital of the said several provisions hereby granted to each of my said sons Lord Charles Edward Hay and Lord Frederick Hay respectively, and any accumulations of interest and annual produce added thereto, or such part thereof as shall not have been disposed of by my trustees under the foresaid powers, to my son the said Viscount Walden, in the event of his surviving my said sons Lord Charles Edward Hay and Lord Frederick Hay respectively, and in the event of his predeceasing them respectively, then to the heir-male of his body succeeding to the foresaid entailed estates, and in the event of the said Viscount Walden leaving no such heir-male of his body, or if such heir-male of his body shall have predeceased my said sons Lord Charles Edward Hay and Lord Frederick Hay respectively, then to their whole surviving brothers and sisters (including the survivor of the said Lord Charles Edward Hay and Lord Frederick Hay, but excepting the heir of entail succeeding to said entailed estates) and the lawful issue of such of their brothers and sisters (including and excepting as aforesaid) as shall have predeceased them leaving lawful issue, equally among them share and share alike, such issue coming in place of their parents and taking equally among them the shares which would have fallen to their deceased parents if in life: Declaring that the shares or share so succeeded to by the survivors of the said Lord Charles Edward Hay and Lord Frederick Hay and of my said daughters shall be taken subject to the same provisions, declarations, powers, directions, and others as are herein before and after written in regard to their foresaid provisions so far as applicable to them respectively: And providing and declaring further in regard to the several provisions herein conceived in favour of my said whole daughters, as it is hereby specially provided and declared, that notwithstanding anything to the contrary hereinbefore written, my trustees shall set aside and hold and retain and invest in their own names, as trustees foresaid, the several provisions hereby granted to each of my said daughters for behoof of my said daughters in liferent for their respective liferent uses allenarly during all the days of their respective lifetimes after my decease, and exclusive of the jus mariti and right of administration of their husbands or of any husbands they or any of them may marry, and for behoof of their respective children equally among them in fee, and that the liferents of the said several Page: 195↓
provisions shall be purely alimentary and shall not be assignable or capable of anticipation by my said daughters respectively, nor liable to the diligence of their creditors, and not affectable by the debts or deeds of their husbands, or of any husbands they or any of them may marry, or attachable by the diligence of such husbands creditors, the jus mariti and right of administration of all such husbands being hereby expressly excluded and debarred … and the said legacies, shares, and provisions hereby granted and bequeathed to my children respectively, and the other sums and provisions above mentioned, are and shall be accepted by them and each of them, and are hereby declared, to be in full satisfaction to them and each of them of all legitim, executry, and everything else which they or any of them can ask or claim by or through my decease.… and with reference to the before written distribution of my means and estate, it has always been my anxious desire to make as ample provision for my children (other than my said heir of entail who will succeed to my said entailed estates and is therefore well provided for) as my circumstances will permit, and also to do justice to all my younger children by placing each of them on a footing as nearly equal as circumstances render prudent, and where I have attached conditions or restrictions to the provisions left to any of them, I desire it to be understood that as my children are all equally dear to me I have conceived and executed this deed solely from an anxious regard for the welfare of each and all of them.…” Viscount Walden survived the testator, and died on 28th December 1878 without issue. The present Marquis of Tweeddale was his residuary legatee.
One of the daughters of the testator was the late Dowager-Duchess of Wellington. She died on 13th August 1904, and at the date of her death she was a widow and had no issue. Until the date of her death she enjoyed the liferent of £8415, being the £8500 provided to her by the trust-disposition and settlement, after deduction of the legacy-duty of £85 paid thereon.
In these circumstances, questions having arisen as to the nature of the Dowager-Duchess of Wellington's interest in the said sum of £8415 provided to her by said trust-disposition and settlement, the present special case was presented.
The parties to the special case were (1) General Sir Richard Chambre Hayes Taylor and others, the trustees acting under the testator's trust-disposition, first parties; (2) the present Marquis of Tweeddale, the residuary legatee of Viscount Walden, second party; (3) the Duke of Wellington and another, the testamentory executors of the late Dowager-Duchess of Wellington.
The second party maintained that the said Dowager-Duchess of Wellington had a mere liferent of said sum, and that on her death it fell to be disposed of as residue and to be paid to the second party as in right of the said Viscount Walden, the residuary legatee.
The third parties maintained that the bequest of the said sum to the Dowager-Duchess of Wellington was a gift of the fee, and that the subsequent clause providing for the restriction of her enjoyment of the same to a liferent was intended to apply only in the event of her leaving children to the effect of giving the fee to such children. They accordingly contended that the said sum vested in her and fell to be disposed of as part of her moveable estate and to be paid to them as her trustees.
The questions for the opinion and judgment of the Court were—“(1) Was the right of the said Dowager-Duchess of Wellington in said sum of £8415 limited to a liferent thereof, and did said sum on her death fall into residue of the testator her father, and become payable to the second party, or those in his right? or, (2) Did the said sum of £8415 on the death of the said Dowager-Duchess of Wellington fall to be disposed of as part of her moveable estate, and to be paid to her assignees inter vivos or mortis causa, or, failing her disposal thereof, to her heirs in motnlibus?”
Argued for the second party—There was no absolute disposition to the daughters of the fee of the sums which the testator had directed his trustees to pay them. In this respect the case was different from Lindsay’s Trustees v. Lindsay, December 14,1880, 8 R. 281, 18 8.L.R. 199; Dalglish's Trustees v. Bannerman's Executors, March 6, 1889, 10 R. 559, 26 S.L.R. 424; Logan's Trustees v. Ellis, February 7, 1890, 17 R. 425, 27 S.L.R. 322. It had been held that a direction to “hold and invest” did not infer a gift of fee— Muir's Trustees v. Muir's Trustees, March 19, 1895, 22 R. 553, 32 S.L.R. 370. The construction here contended for had been adopted in a case where the testamentary provisions were very similar— Young's Trustees v. Young, March 5, 1901, 3 F. 616, 38 S.L.R. 434. The directions in the seventh purpose were exegetical of what the testator meant by the direction to pay in the fifth purpose. So read there was no repugnancy between the direction to pay in the fifth purpose and the directions in the seventh purpose. Fulton v. Fulton's Trustees, February 6, 1880, 7 R. 566, 17 S.L.R. 377, was a direct authority in favour of this contention. Gibson's Trustees v. Ross, Julv 12, 1877, 4 R. 1038, 14 S.L.R. 694, was also referred to.
Argued for the third parties—The direction to the trustees to pay at a term after the testator's death a specified sum to each of his daughters amounted to the gift of a fee. There were several cases in which, where a daughter died without issue, she was held to have taken a fee in a share of the estate, her enjoyment of which during her life was limited to a liferent— Lindsay's Trustees v. LAndsay; Dalglish's Trustees v. Bannerman's Executor: Logan's Trustees v. Ellis (cit. sup.); Dunlop's Trustees v. Sprot's Executor, March 9, 1899, 1 F. 722, 36 S.L.R. 531. The sole object of the testator in restricting the daughter's enjoyment of her share during her life to a
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liferent was to protect and secure the succession of her children if she had children. Accordingly it was just the ordinary case of a fee burdened with a gift-over to children if there should be any— Mackay's Trustees v. Mackay's Trustees, June 8,1807, 24 R. 904, 34 S.L.R. 683; Stewart's Trustees v. Stewart, January 22, 1806, 23 R. 416, 33 S.L.R. 297. This construction was the only one under which the original gift and the subsequent liferent clauses could both receive effect. The absence of a destination-over strongly supported this construction, and the other clauses of the deed pointed in the same direction. At advising—
On the construction of the deed I am of opinion with your Lordships. I have had the advantage of perusing the opinions now delivered by Lord Stormonth Darling and Lord Low, and I content myself with saying that I concur in the view they have taken as to the inference to be drawn from the clauses of the deed.
But on the wider question I wish to say a few words.
In one sense it is true that no decision in this branch of the law can ever be authority for another, for as different instruments are being construed, and the sole question is what is the true meaning of each, the decision of the proper construction of the will of A can never as authority rule the construction of the will of B.
But none the less the dicta of Judges in giving the reasons for holding a certain construction of the will of A to be the true one may and often do act as guide-posts to direct the inquirer for what indicia he should look in construing the will of B, and in this sense it is convenient if not strictly accurate to speak of the principle of so-and-so as laid down in a case or a series of cases.
I do not propose to examine separately the cases which were brought before our notice in the very satisfactory argument we had from the bar, but using the word principle in the sense I have explained, I do educe from them certain principles.
As a person's testamentary writings must always be viewed as a whole, it, in one sense, makes no difference whether two or more directions as to one fund or interest are contained in one part or in several parts of one deed, or in different deeds. The whole of the sentences, wherever found, must be read together. But in another sense it does make a difference. There is an antecedent improbability that a rational being—and testators are in the eyes of the law presumed to be rational—intends to contradict at the end of a sentence or clause what he has said at the beginning of it. But there is no antecedent improbability that a testator intends to contradict in his codicil what he has said in his will. Codicils are often written for no other purpose. If the codicil in terms revokes or alters the will or a portion of it, no question remains. If it does not do so in terms, there is still no antecedent improbability that it may not do so; only, as the revocation or alteration alleged is now not express but implied, we must be sure that the implication is a necessary inference from the words used.
Passing away from the position of the directions, the next point I gather is this.
When in the beginning of an instrument you find words which purport to bestow a certain gift or interest, and then subsequently find further provisions or declarations which obviously deal with the gift or interest of the same donee, then the further expression of the donor's will must have been inserted by him for one of two purposes, either (1) to enlarge or abridge the gift from what, had the original words remained unadded to, it would have been or might have seemed on a certain construction of the words to be; or (2) leaving the gift the same, to adhibit further conditions or directions as to the way in which the gift is to be enjoyed. Let me interpolate, that it does not seem to me that these propositions are affected by the point whether there is or is not what I may call a warning expression in the first clause that there is more on the same subject to come.
The final proposition I take to be this—that where the subsequent declaration does not in terms purport to affect the first purpose— i.e., to enlarge or abridge the gift itself—then on the well-known view of allowing continued effect to all the testator has said, that construction will in dubio be preferred which assigns it to the second rather than to the first category.
I do not think that any of the cases cited will be found not to square with these propositions. I should only wish to add that a difficulty which pressed me a good deal as to the case of Fulton v. Fulton's Trustees has been removed by a perusal of the session papers. From the deeds, which are there printed in extenso, it appears clearly that the original gift in the will, which in expression clearly purported a fee, was in terms revoked by a codicil, and that what was substituted therefor was a gift, which with equal clearness purported a liferent and nothing more. The case is not therefore, as it at first sight appeared to be, in any way inconsistent with the case of Stewart's Trustees.
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I admit that this result can only be reached if you find in the will words which on their just construction are capable of conferring a fee. But I find such words in the directions to the testator's trustees to make payment at a particular term after his death of a specified sum to each of his daughters, including the Duchess. I do not think that the words which almost immediately follow—“but subject always in the case of my sons the said Lord Charles Edward Hay and Lord Frederick Hay, and my said whole daughters, to the provisions, declarations, powers, directions, and others hereinafter written applicable to them respectively”—impart any other or greater qualification of the original gift than would be constituted by the clause which is printed in the appendix, and by which the trustees are directed to “set aside and hold and retain and invest in their own names as trustees foresaid the several provisions hereby granted to each of my said daughters for behoof of my said daughters in liferent for their respective liferent uses allenarly during all the days of their respective lifetimes after my decease, and exclusive of the jus mariti and right of administration of their husbands or of any husbands they or any of them may marry, and for behoof of their respective children equally among them in fee.” And then follows a declaration that the liferents are to be alimentary and not assignable. In short, I do not see much force in what I may call the in gremio argument.
This clause (the seventh) undoubtedly imparts an important qualification of the original gift, and that in a double sense. It leaves the money in the hands of the trustees during the whole life of each daughter, in order to secure that she shall only have the income as an alimentary provision, and it gives the fee to her children, if any. But beyond effecting these two purposes it does not go, at all events expressly. The second party, as representing the residuary legatee, maintains that it goes much further and reduces the daughters’ right to a liferent whether they had children or not. If that contention be adopted it is impossible to reconcile the two clauses—they are mutually repugnant. If, on the other hand, you adopt the construction for which the Duchess’ executors contend, you find a reason for the testator having left the two clauses standing in the same deed. In the events which have happened both clauses receive effect—the liferent clause by the protection afforded to the lady herself during her life, and the original gift by conferring upon her the jus disponendi.
There are other clauses in the will which in my opinion support that view. In particular, the provisions to Lord Frederick and Lord Charles Hay, although first directed to be paid to them at a particular term after the testator's death, just as in the case of the daughters, are afterwards so dealt with as to make it perfectly clear that if these younger sons should die without leaving lawful issue the capital of their provisions is to go to the testator's eldest son in the event of his surviving these younger sons, and to certain other persons in the event of his predeceasing them. In their case, therefore, it would have been impossible to contend that they had a fee subject to divestiture. But there
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With regard to the cases, there is a series, beginning with Lindsay's Trustees in 1880, and coming down to Dunlop's Trustees in 1809, in which both Divisions of this Court have given effect to the principle that a clause reducing a beneficiary's interest to a liferent may be reconciled with a clause capable of being read as conferring upon her a fee, by treating the liferent as conditional on her having issue. The principle seems not only a sound one but is firmly established, and it ought, I think, to be applied wherever the will permits of such reconcilement, as this will in my opinion does.
The answer to these questions depends upon the construction of the trust-disposition and settlement, and in particular of the fifth and seventh purposes thereof.
By the fifth purpose the truster directed his trustees “to make payment at the first term of Whitsunday or Martinmas that shall happen six months after my decease” to each of his daughters “of the sum of £8500, but subject always … to the provisions, declarations, powers, directions, and others hereinafter written.” These provisions and declarations are to be found in the seventh purpose, and are in the following terms:—“Providing and declaring further that, notwithstanding anything to the contrary hereinbefore written, my trustees shall set aside and hold and retain and invest in their own names as trustees foresaid the several provisions hereby granted to each of my said daughters, for behoof of my said daughters in liferent for their respective liferent uses allenarly … and for behoof of their respective children equally among them in fee.” The jus mariti and right of administration of husbands were excluded, and the liferents were declared to be purely alimentary, and not liable to the diligence of creditors. There was no destination over in the event of failure of children.
It was argued that that clause must be read as defining what the truster meant by the direction to pay in the fifth purpose, and as prescribing the way in which that direction was to be carried out. I am unable to take that view because the direction to pay to each daughter the capital sum of £8500 in the fifth purpose is distinct and unequivocal, and the direction in the seventh purpose not to pay any part of the capital sum to the daughters is equally distinct and unequivocal. No doubt the former direction is to pay subject to the provisions and declarations after written, but that does not alter the fact that the direction is to pay the capital sum. There is, therefore, an apparent contradiction between the two directions, and if upon a fair construction of the settlement they cannot be reconciled that which comes last must prevail. A construction of a settlement, however, which gives no effect to an unambiguous direction is not to be adopted if it be possible, upon a fair construction of the settlement as a whole, and without unduly straining the language used, to ascribe to the direction an intelligible meaning and purpose.
In my opinion the direction to pay in the fifth purpose and the direction to hold in the seventh purpose can he reconciled without doing any violence to the language used, by reading the direction to pay according to the natural meaning of the words as conferring a fee on the daughters, and by reading the directions in the seventh purpose as merely limiting or burdening that fee to the extent of the trust thereby created, the object of which was to secure the capital sum to the daughters’ children, if they had children, and to make more secure to the daughters themselves the enjoyment of the income so long as they lived. If that is a sound construction then upon the death of a daughter without children the original gift of the fee to her took effect and the capital passed to her heirs and assignees.
There are several considerations which seem to me to favour that construction. In the first place there is no destination-over of the fee, and I think that it is plain that the truster did not contemplate that the provisions to daughters should in any event either fall into residue or become intestate succession. If, however, a fee was given to the daughters subject only to the limitations of the trust constituted by the seventh purpose, no destination-over was required, because in the event of the death of a daughter without children the trust came to an end and the initial gift of the fee took effect.
Further, unless the omission of any destination-over failing children is to be accounted for by there being no necessity to insert such a destination, the clause with which I am dealing is in marked contrast to other clauses in the settlement, where most careful provision is made for every contingency. Thus the trustees are directed to pay the residue to Viscount Walden, the truster's eldest surviving son, and failing him by predecease to the heir-male of his body succeeding to the entailed estates, and failing such heir-male to the whole other children of the truster alive at his death, and the issue of such children as might have predeceased him. In like manner the trustees are directed to pay the sums provided to two of the truster's sons, Lord Charles and Lord Frederick Hay, in the event of their deaths without leaving lawful issue, to the Viscount Walden, whom failing to the heir-male of his body, whom failing to the truster's other children as directed in regard to the residue.
Now, all these directions are contained in the seventh purpose, that relating to the provisions to Lord Charles and Lord
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In the next place, the words with which the directions in the seventh purpose are introduced—“notwithstanding anything to the contrary hereinbefore written”—appear to me to be not without importance. These words were founded upon as an expression of the truster's intention that the daughters’ rights should be limited to a liferent allenarly. Perhaps they are capable of that meaning, but I think that the sounder view is that they point in an opposite direction. If the intention had been to give the daughters nothing but a liferent, and the framer of the deed had found when he came to give effect to that intention that he had already inserted a clause which prima facie gave them a fee, I think that he would have deleted or altered that clause. I cannot imagine him allowing the clause to stand with an explanation that it did not express what the truster meant. Accordingly I read the words as recognising and approving the direction to pay in the fifth purpose, and as being in effect a declaration that, notwithstanding any apparent contradiction between that direction and those about to be written, the former should still be regarded as expressing the truster's intention.
There is another circumstance which I do not think was referred to in argument, but which appears to me to be worthy of observation. The residue clause begins with the declaration that the directions which it contains shall be “subject always as regards any provisions falling to … my whole daughters to the provisions, declarations, powers, directions, and others hereinafter written.” In like manner, it is declared in regard to the ultimate destination-over of the provisions to Lord Charles and Lord Frederick Hay—the destination, namely, to the surviving brothers and sisters of these gentlemen, and the issue of predeceasing brothers and sisters—that “the shares or share so succeeded to by the survivors … of my said daughters shall be taken subject to the provisions, declarations,” and so forth, “as are hereinbefore and after written in regard to their foresaid provisions.”
If therefore a share of the residue or of the provisions to Lord Charles and Lord Frederick Hay had fallen to a daughter, the trustees would have been bound to hold such share for the daughter in liferent allenarly and for her children in fee, just as if it had been part of the original provision to her.
Now, suppose (what might possibly have happened) that the whole of the residue, and the whole of the sums provided to Lord Charles and Lord Frederick Hay had fallen to daughters, and that all the daughters had died without children. In that event, if the right of daughters was limited to a liferent allenarly, the result would have been that practically the whole personal estate of the truster would have been undisposed of, and would have fallen into intestacy. A construction of the settlement under which such a result would be possible is not to be favoured; and it can be avoided by holding that when the truster directed payment to be made to a beneficiary he intended to give a fee, subject only to such burdens and limitations as he might subsequently impose.
The construction which in my opinion should be adopted seems to me to receive support from the series of cases which were cited, beginning with Lindsay's Trustees, 8 R. 281. The principle recognised in all these cases seems to me to be that where there is a direct bequest, or a direction to trustees to pay or convey to a daughter in terms which according to the natural meaning of the language used import a gift, that gift will not be recalled by a subsequent direction to the trustees to hold the fund for, or settle it upon, the daughter in liferent for her liferent use allenarly and her children in fee, except in so far as may be requisite to give effect to these purposes, and accordingly if there are no children the fee will vest absolutely in the daughter and be in bonis of her at her death.
Perhaps in one of the cases (namely, Stewart's Trustees, 23 R. 416) the principle was carried too far, or rather was applied to circumstances to which it was not truly applicable. The present case, however, appears to me to be one to which the principle is plainly applicable, because it renders it possible to give an intelligible meaning and purpose to every clause in the settlement, and avoids the necessity of regarding one clause (unambiguous in itself) as altogether inoperative.
I am therefore of opinion that the first question in the special case should be answered in the negative, and the second in the affirmative.
The Court answered the first question in the negative and the second question in the affirmative.
Counsel for the First and Second Parties— Dean of Faculty (Campbell, K.C.)—Chree. Agents— John C. Brodie & Sons, W.S.
Counsel for the Third Parties—C. K. Mackenzie, K.C.—Howden. Agents— J. & F. Anderson, W.S.