Scottish Court of Session Decisions

Lord Hunter—[ After a narrative of the facts]—On a consideration of the language of the settlement I think the testator's intention was to give issue of a predeceasing legatee the share which their parent would have taken if he had survived, i.e., not only the original share determined by the number of the class favoured, but any accretion arising thereto from the predecease of one or more members of the class without leaving issue. There is no express provision under which the survivors of the favoured class are to take the shares of predeceasing brothers and sisters. The share which each parent of the issue claiming would have taken would have been one sixth of the residue.

In Laing v. Barclay, 1865, 3 Macph. 1143, there was a provision as regards children of the testator predeceasing the term of division leaving lawful issue, that such issue “should represent and be entitled to the proportion which would have been payable to their parent.” In the course of his opinion Lord Cowan, who delivered the opinion of the Court, said at p. 1150—“Questions regarding the right of accretion have occurred under settlements expressly providing that the share of the child or children predeceasing shall accresce to the survivors equally; and in such cases whatever the form of expression may be, provided only it be clear that the surviving children are to have right of accretion, the issue of predeceasing children to whom their parent's share is either provided in express words or has been held to vest in them under the implied condition can only take the parent's share, the immediate issue alone of the testator having right of accretion through any of the other children predeceasing without issue.… But it is impossible to hold that principle applicable to cases where there is no clause of survivorship, and where, as in the present deed, there is an express declaration of the extent of interest in the succession to be taken by the issue of predeceasing children.”

In M'Culloch's Trustees, 1892, 19 R. 777, 29 S.L.R. 645, the issue of a predeceasing beneficiary were held entitled to participate in an accrescing share just as their father would have been had he not been disinherited. The circumstances of that case are special. In the course of his opinion, however, Lord M'Laren said that he was not “disposed to assent to the proposition that there is any artificial rule of construction which obliges us to hold where a residue is disposed of among different members of a family that the children of one of the residuary legatees who may die are cut out from what their parent would have taken by accretion.”

In the subsequent case of Neville v. Shepherd, 1895, 23 R. 351, 33 S.L.R. 248, a testator directed his trustees to pay the liferent of the residue of his estate to his daughter and her husband, and at the first term of Whitsunday or Martinmas after the death of the survivor to divide the whole residue, share and share alike, among their children and the survivors or survivor of them. There was a declaration that in the event of all the children having died without leaving issue, and in that event only, payment should be made to certain nephews and nieces.

The testator was survived by his daughter and her husband. They had six children. Four of them survived the testator but predeceased their parents without issue. Two survived their parents, but one of them died before the period of payment, and therefore without having any vested right. It was held that her children were entitled to succeed to the half of the estate which would have fallen to their mother had she survived the term of payment.

In the course of his opinion Lord M'Laren said—“In Young v. Robertson, 1862, 4 Macq. 337, the scheme of the destination was that the testator made a division amongst a family of grandchildren, and then he proceeded to deal, first, with the case of a member of the family who might die without leaving issue, and then with the case of a member who should die leaving issue. In the first case he gave that person's share to the survivors exclusively, therefore excluding the issue of any other member of the family from participation. But in welldrawn destinations of this kind it is provided that on the death of a child leaving issue the issue shall take the same share which the parent would take if he survived, or as it is sometimes put, the parent's share whether original or by accretion, or again, the principle is sometimes carried out by dealing with the case of a person who shall die childless, and stating that his share shall go to the remaining members of the family and the issue of those who have predeceased.”

The above decisions and the opinions which I have quoted appear to me to support the view which I have expressed as to the meaning to be attributed to the language used by the testator.

It was maintained, however, on behalf of a brother and sister of the testator, who survived his widow, that the view indicated is contrary to a series of decisions, the leading example of which is the case of Young v. Robertson, 1862, 4 Macq. 337. In that case it was held that issue taking their predeceasing parent's share in virtue of the conditio si institutus sine liberis decesserit took the share which was in the parent at the date of his death, but not any accretion to which the parent might have become entitled if he had lived till some later period. I have difficulty in seeing how a rule governing a case of implied institution necessarily rules where the institution is express, and the question is as to the extent of the right conferred by the institution. For this reason, and for that stated by Lord M'Laren in his opinion in Neville's case, I do not think that the decision in Young v. Robertson applies in the present case. That case has been founded upon and applied in a number of subsequent cases, to some of which I was referred, e.g., Graham's Trustee v. Graham, 1868, 6 Macph. 820;

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