tor's sisters, whose mother had predeceased the testator, claimed to represent their mother in her share, as being part of the family of the testator's sister, their grandmother. Held that (1) the word "family" included only the children of the testator's sisters alive at the time of vesting; (2) that the division of the residue among the families must be per stirpes and not per capita. Mr John Low, banker, Glasgow, died at Aberdeen on 26th July 1872. He was survived by two sisters-Mrs Margaret Low or Lawrie and Mrs Mary Low or Brebnerand by a sister-in-law-Mrs Low-all of whom at the time of his death had issue, but one daughter of Mrs Lawrie Mrs Brown-had predeceased Mr Low, leaving children. By a holograph testamentary writing dated 22nd May 1869 Mr Low disponed and conveyed his whole estate to trustees, whom he appointed his executors. He directed them to pay expenses, to realise investments, to pay certain legacies, and provided-"I desire the interest on the residue of my estate to be divided into three equal parts, and given to my two sisters Margaret Lawrie and Mary Brebner and my sister-in-law Mrs Low in half-yearly payments. The families of the annuitants to get the interest of their mothers until the death of the last annuitant, when at the ensuing money term the residue of my estate is to be divided into two parts-the one-half for the families of my two sisters (excluding the jus mariti of their husbands), and the other half to the treasurer of the Free Church for the Sustentation and College Funds equally." Upon 22nd April 1872 he executed a second holograph testamentary deed, in which he provided annuities of £200 to each of his sisters and one of £100 to his sister-in-law, free of legacy-duty; "to my niece Eliza Lawrie or Brown" (who predeceased the testator on 9th June 1859), "for family equally, £1000;" sums of £1000 and £2000 to other nieces; £100 to each of five namesons; and donations to charities, in all £7500. The deed then proceeded"Suppose my estate to realise Take off £20,000 7,500 12,500 Interest at 4 p. c. on £12,000 would pay the annuitants, but if short, take out of capital. "Balance left for further disposal." These deeds formed the subject of a special case, reported June 21, 1873, 11 Macph. 744. The Court held that both deeds were good testamentary writings and were to be read together, and that the residue of the estate had been competently disposed of by the first deed. The executors realised the estate, paid the charges and legacies, and thereafter administered the estate for the payment of the annuities till the death on 15th January 1891 of the last annuitant, Mrs Brebner, the sister of the testator. As the time had now come for the division of the residue, the trustees raised an action of multiplepoinding in the Sheriff Court at Aberdeen. They averred-"No question has arisen about the half of the residue that goes to the treasurer of the Free Church, but in regard to the division of the half of residue that was destined to the families of the testator's two sisters two questions have arisen, viz., first, whether the division is to be per capita or per stirpes, and second, whether the children of Mrs Eliza Lawrie or Brown, who predeceased the testator, represent their mother in her share as being part of the 'family' of the testator's sister Mrs Lawrie." The claimants were-1st, Mrs Whitworth and others, six children of Mrs Lawrie, the testator's sister, who were alive at the testator's death, who claimed that the fund in medio should be divided among the children of the testator's two sisters who were alive at the death of the last annuitant, and that it should be divided per stirpes; 2nd, the son of Mrs Lawrie and his assignee, who claimed that the fund should be distributed per capita; 3rd, the husband of Mrs Brebner, one of the annuitants, and his assignee, who claimed his wife's share on a division of the fund per stirpes; 4th, William Lundie and another, children of a son of Mrs Brebner by her first husband. Their father had predeceased the last annuitant; 6th and 7th, James Brown and others, the children of Mrs Margaret Lawrie or Brown, the daughter of Mrs Margaret Lawrie or Brown, the daughter of Mrs Margaret Lawrie, sister of the testator, but who had predeceased him, and the assignee of one of the children. The last three claimants claimed the portion of the fund which would have fallen to their parents' share had they survived the last annuitant. Upon 29th September 1891 the SheriffSubstitute (BROWN) pronounced this interlocutor:-"Finds on a sound construction of the testamentary writings of the deceased John Low, that the residue of his estate forming the fund in medio, falls to be divided among the families of his two sisters Margaret Lawrie and Mary Brebner, excepting the family of the deceased Eliza Lawrie or Brown, the eldest daughter of the said Margaret Lawrie, per stirpes: Finds that the said Eliza Lawrie or Brown having predeceased the date of the deed of settlement was not instituted under it, and therefore that the claimants who derive through her take no benefit under the deed: Finds further, that the family of the said Eliza Lawrie or Brown are excluded from participating in the residue of the deceased John Low, by the special bequest of £1000 made for them under the deceased's second testamentary writing: With reference to the foregoing findings in law, ranks and prefers the claimants, John Low Brebner and the North of Scotland Bank, Limited, to one-fourth of the fund in medio: Ranks and prefers the claimants William H. Lundie and Mary Altinee Lundie or Ledward each to one-eighth of the fund in medio: Ranks and prefers the claimants v Jane Lawrie or Whitworth, Sophie Lawrie or Clarke, Mary Lawrie or Pithie, Agnes Lawrie or Johnston, Henry Lawrie, Margaret Lawrie or Webster, and William Lawrie, each to one-fourteenth of the fund in medio: Refuses the claims lodged on behalf of the children of the said Eliza Lawrie or Brown, or their assignees and descendants: Finds the claimants John Low Brebner and the North of Scotland Bank, Limited, and William H. Lundie and Mary Altinee Lundie or Ledward entitled to expenses. "Note.-The two questions involved in this case are concisely and clearly stated in the summons of multiplepoinding by which the several claimants have been brought into Court, and the facts out of which they arise are of quite simple character. One of these, taking the order in which they were presented in argument, is whether the Brown and the Smith family, being the children and grandchildren respectively of Eliza Lawrie or Brown, a niece of the testator, have any interest in the residue of the estate forming the fund in medio? I am of opinion they have not and that they are excluded on two grounds. The first of these is, that the parent of the claimants having predeceased the date of settlement, she was never instituted under it, and therefore there is no room for the operation of the conditio si institutus sine liberis decesserit. This doctrine was fully recognised in the two leading cases-Sturrach v. Benny, November 29, 1843, 6 D. 117, and Rhind's Trustees v. Leith and Others, December 5, 1866, 5 Macph. 104, and was referred to and adopted in Blair's Executor v. Taylor, January 18, 1876, 3 R. 362, and in the very recent special case Hall v. Hall, March 17, 1891, 18 R. 690. I assume that all the circumstances concur that would otherwise admit the condition, viz., that the testator stood in loco parentis and was making a family settlement, and that the legatees were not nominatim instituted, but it seems not doubtful, on the authorities above quoted, that the family of Eliza Lawrie or Brown have no claim to the residue as deriving right through her. The second ground on which I reject the claim of the Brown and Smith family is, that a special provision was made for Eliza Lawrie or Brown's family, in view undoubtedly of the fact that they did not otherwise take under the settlement. argument indeed was maintained in favour of the claimants on the terms of this special provision, it being urged that Eliza is dealt with by the testament precisely as her sisters Sophia and Mary are, a further indication of the intention of the testator that her family should also share in the residue being that a legacy is left to the Rev. John Brown as nameson. I am unable to adopt this view, because, on the contrary, I think it is clear that in view of the predecease many years before of Eliza Lawrie or Brown, the codicil of 22nd April 1872 left the legacy of £1000 to her family, the testator simply emphasising by the terms of his bequest that he had not forgotten his dead sister. In the view I thus An take of the case it is not necessary to consider the doctrine laid down in Irvine v. Irvine, July 9, 1873, 11 Macph. 892. "The second question is, whether the division of the residue destined to the families of the testator's two sisters is to be per capita or per stirpes? This is a point undoubtedly of more difficulty, but after the best consideration I have been able to give it, I have come to be of opinion that the latter is the true rule of distribution. By the first writing the testator directed that the interest on the residue of his estate should be divided into three equal parts and given to the two sisters already mentioned and to his sister-in-law. By the second codicil these interests are converted into fixed annuities, but I apprehend that does not in any way affect the rule of division that now falls to be applied. What is important to note is how the testator in the first place deals with the interest of the residue. He gives that in three equal parts, and provides that the families of the annuitants are to get the interest of their mothers until the death of the last annuitant. The rule of construction is undoubted, that when a share of residue, whether original or lapsed, is given in liferent and fee to a person named and the children respectively, the division is per stirpes. There are here two liferents and the question practically is, whether that is ousted by throwing into the fee the liferent of a third person? But for the increment the division of the fee would certainly be per stirpes, and looking to the whole conception of the settlement and the manner in which the families of the testator's two sisters are dealt with in the first part of the deed, I think it would require words of a particularly distributive character to justify the division per capita for which the other claimants contend. The very contrary is the case for the testator continues to use the word 'families,' providing that the enlarged fee is to go to them equally. Both parties relied on the case of Richardson v. M'Dougall, March 26, 1868, 6 Macph. (H. of L.) 18, reported in the Court of Session in this branch of it (February 6, 1866, 4 Macph. 373). "I cannot see, however, how the supporters of a per capita division make out that they take any advantage from this case, because the doctrine expounded by the Lord Justice-Clerk as to the division of the fee was undoubtedly upset in the House of Lords. The judgment is distinctly so rubricked, and the point is specially dealt with in the opinions of the Lord Chancellor and Lord Westbury. But the Lord JusticeClerk as Lord President, in the case of Home's Trustees v. Ramsay and Others, December 11, 1884, 12 R. 314, makes it quite clear how he understood the judgment of the House of Lords when he says that under a destination of residue in liferent and fee to a person named, and to children respectively, the distribution as per stirpes is settled by the case of Richardson v. Macdougall. I quite recognise the specialty in Home's Trustees v. Ramsay and Others, quoted as an authority by the claimants v. Whitworth. 4, 1892. V. who have been preferred, that the share of a daughter dying without issue was given in liferent to her surviving sisters, and that it is necessary in the present case to go beyond the general principle which has been referred to, to the deed itself, to gather the testator's intention; but it seems to me, for the reason already assigned, that there is a clear indication of what that is, and that the general rule of law and the intention blend together. Reference was further made by the successful claimants to Laing's Trustees, November 18, 1879, 7 R. 244, and to the case of Cumming, January 13, 1891, 18 R. 380." Mrs Whitworth and others appealed. Cases cited:-1. Who were included in the families of the testator's sisters-Low's Executors and Others, June 21, 1873, 11 Macph. 744; Irvine v. Irvine, July 9, 1873, 11 Macph. 892; Fyffe v. Fyffe, July 13, 1841, 3 D. 1205; M‘Laren on Wills, i. 726; Gregory v. Smith, May 4, 1852, 9 Hare's Chan. Rep. 708; Pigg v. Clarke, July 31, 1876, L.R., 3 C.D. 673. 2. Should division be per Capita or per Stirpes - M'Courtie and Others v. Blackie's Children, January 15, 1812, Hume's Decs. 270; M'Kenzie v. Holte's Legatees, February 2, 1781, M. 6602; Grant v. Fyffe, May 22, 1810, F.C.; Bogie's Trustees v. Christie, January 26, 1882, 9 R. 453; Cunningham's Trustees v. Cunningham, January 13, 1891, 18 R. 381; Barnes v. Patch, June 27, 1803, Vesey's Chan. Rep. 603; Alexander v. Douglas, June 29, 1782, Romilly's Notes of Cases; Brett v. Hirten, July 22, 1841, 4 Beavan's Reps. 239. At advising LORD TRAYNER-The present appeal is taken against an interlocutor of the SheriffSubstitute of Aberdeenshire pronounced is an action of multiplepoinding brought before him for the purpose of having determined who among certain competing claimants are entitled to the one-half of the residue of the estate of the deceased Mr John Low. Mr Low died in July 1872 leaving a settlement dated 22nd May 1869 by which he directed his executors there nominated, inter alia, to divide the interest on the residue of his estate into three equal parts, and to give one of such parts to each of his sisters Mrs Lawrie and Mrs Brebner, and her sisterin-law Mrs Low, in half-yearly payments. He further directed--"The families of the annuitants to get the interest of their mother until the death of the last annuitant, when, at the usual money term, the residue of my estate is to be divided into two parts, the one-half for the families of my two sisters, and the other half to the Treasurer of the Free Church equally." That is, the residue, on the death of the last surviving annuitant, was to be divided equally, one-half going to the Treasurer of the Free Church, and the other half to the "families of my two sisters." It is this half destined to the families of Mr Low's two sisters which forms the fund in medio in the present action. The claims now made on the fund in medio give rise to two questions 1st, Who are to be held as included in the "families of the two sisters; and 2nd, is the division of the fund among those entitled to share therein to be per capita or per stirpes?" The first of these questions arises thusMrs Lawrie, one of the testator's sisters, had a daughter Eliza Lawrie or Brown, who died in 1859--that is, ten years before the date of the settlement now under consideration - leaving children and grandchildren. These children and grandchildren claim to share in the fund in medio as being of the "family" of Mrs Lawrie, the testator's sister, maintaining that the word "family" means not children only, but descendants generally. I think these claimants cannot succeed in their claim upon this ground. The word "family" when used as a term of designation is synonymous with children, a character which these claimants do not possess. It is quite true that in the case of Irvine it was said that the word "family" in the circumstances of that case would include all descendants. But in that case the destination which was being construed was one in favour of nephews and nieces, "and the families of such as may have predeceased," and the question was, whether under such a destination the grandchildren of a predeceasing nephew took equally with the child of that nephew. It was held that they did not because they were included in the destination as of the nephew's family, but because they were entitled to their deceased parent's share on the principle of implied conditional institution. In cases where that principle is applicable it was said that the word "family" had a wider signification than "children.' Here the destination is to the family of each sister of the testator without any provision for the succession of the issue of any member of such "family" to the predeceasing parent's share, and it seems to me that the destination here is in favour of the family-that is, the children of the two sisters who were alive at the date of vesting. Whether under that destination the children of any member of the family predeceasing would be entitled to succeed on the conditio si sine liberis need not here be considered, for in this case there is no room for the application of that principle. Mrs Brown, through whom these claimants claim, was never herself instituted, for she died, as I have said, ten years before the testator's settlement was executed. The Sheriff-Substitute has rejected the claim of these claimants on another ground, namely, that they are the direct beneficiaries under the testator's codicil of a special legacy. I should rather regard that fact as showing that the testator made a special provision in favour of his grandnephews and nieces because they did not under his will take any share in the division of the residue. If I had read the provision as to the division of the residue otherwise than I have done, I would not have been disposed to hold that a special legacy in itself militated against the view that they were also to participate in the . v. Whitworth 4, 1892 residue. But this question need not enter into the decision of the case. It is enough to say that these claimants who claim through Mrs Brown neither take directly under the destination of the settlement nor on the ground of implied conditional institution. The remaining question is, Is the division of the residue to be a division per capita or per stirpes? On that question I agree with the Sheriff-Substitute and with the reasons assigned by him for his judgment. LORD RUTHERFURD CLARK, LORD YOUNG, and the LORD JUSTICE-CLERK concurred. The Court pronounced this judgment: or "Recal the third finding in the interlocutor of the Sheriff-Substitute of 29th September 1891; quoad ultra adhere to the said interlocutor, and dismiss the appeal: Further, and of consent of all parties, rank and prefer the claimants Jane Lawrie or Whitworth, Sophia Lawrie or Clark, Mary Lawrie Pithie, Agnes Lawrie or Johnstone, Henry Lawrie, and Margaret Lawrie or Webster to one-sixth each of the sum of £59, 9s. 7d. contained in depositreceipt, and forming part of the fund in medio specified in condescendence thereof, and decern: Find the appellants liable in expenses to the claimants John Low Brebner, the North of Scotland Bank, Limited, William H. Lundie, and Mary A. Lundie or Ledward; of which remit the account when lodged to the Auditor to tax and report, together with the expenses found due in the Inferior Court.' Counsel for Mrs Whitworth--The Lord Advocate - Kemp. Agents - Douglas & Miller, W.S. Counsel for Alexander Brown and Others -H. Johnston-C. N. Johnston. AgentsHagart & Burn Murdoch, W.S. Counsel for Respondents-Asher, Q.C.W. C. Smith. Agent-Alexander Morison, S.S.C. Friday, February 5. FIRST DIVISION. THE LORD ADVOCATE v. MACFAR- Revenue-Legacy-Duty-Moveable Estate Directed to be Invested in Land-Entail"Estate of Inheritance in Possession in the Real Estate"-Act 36 Geo. III. c. 52, secs. 12 and 19. The Act 36 Geo. III. c. 52, sec. 12, provides "That the duty payable on a legacy or residue or part of residue of any personal estate given to . . . differ ent persons in succession, who shall be chargeable with the duties hereby imposed at one and the same rate, shall be charged upon and paid out of the legacy or residue or part of residue so given, as in the case of a legacy to one person; and where any legacy or residue or part of residue shall be given to . . . different persons in succession, some or one of whom shall be chargeable with no duty, or some of whom shall be chargeable with different rates of duty, so that one rate of duty cannot be immediately charged thereon, all persons who under or in consequence of any such bequest shall be entitled for life only, or any other temporary interest, shall be chargeable with the duty in respect of such bequest in the same manner as if the annual produce thereof had been given by way of annuity." Section 19 provides--"That any sum of money or personal estate directed to be applied in the purchase of real estate, shall be charged with and pay duty as personal estate, unless the same shall be so given as to be enjoyed by different persons in succession, and then each person entitled thereto in succession shall pay duty for the same in the same manner as if the same had not been directed to be applied in the purchase of real estate, unless the same shall have been actually applied in the purchase of real estate before such duty accrued; but no duty shall accrue in respect thereof after the same shall have been actually applied in the purchase of real estate, for so much thereof as shall have been so applied: Provided, nevertheless, that in case before the same, or some part thereof, shall be actually so applied, any person or persons shall become entitled to an estate of inheritance in possession in the real estate to be purchased therewith, or with so much thereof as shall not have been applied in the purchase of real estate, the same duty which ought to be paid by such person or persons if absolutely entitled thereto as personal estate by virtue of any bequest thereof as such, shall be charged on such person or persons, and raised and paid out of the fund remaining to be applied in such purchase." A testator directed his trustees during the six years succeeding his death to realise and invest his moveable estate in land, and to entail the same at the end of that period on W. H. D. and a certain series of heirs. The testator declared "that after the said period of six years have expired, the institute or the heir of entail in possession or entitled at the time to possess the lands and estates to be purchased as aforesaid under the destination hereinafter written, shall be entitled to demand and receive the interest and proceeds of the entire residue and reversion of my said estates, heritable and moveable, hereby conveyed, but under deduction always of such expenses and charges as may be incurred by my said trustees in the management and execution of the trust, until the said lands or estates are purchased and entailed, and the whole purposes of the trust fulfilled." A large portion of the moveable estate was not invested in land. On the expiry of the six years, W. H. D., the person who would have been institute if the entail had been executed, having by private arrangement obtained the consent of the three next heirs and their curators, acquired in fee-simple, under petition to the Court, the whole real and personal property of the testator, under reservation of certain sums for Government duties and other purposes. In an action by the Inland Revenue against the trustees for payment of legacy-duty on the moveable estate acquired in fee-simple by W. H. D., the defenders maintained that legacy-duty was only chargeable calculated by way of annuity, or that a deduction must be made in respect of sums paid or secured by W. H. D. in return for the consents to disentail. Held that as W. H. D. had become entitled absolutely to the clear residue of the personal estate, duty was chargeable on the capital thereof at the rate of 5 per cent., without deducting the compensation paid to the consenting heirs. Alexander Dunlop of Carnduff and Doonside died on 30th September 1883 leaving a trust-disposition and settlement dated 28th July 1875 and two holograph testamentary writings, by which he assigned and disponed his whole estates, heritable and moveable, to trustees in trust for certain purposes. By the fifth purpose of his trust-disposition and settlement he directed his trustees to retain and accumulate for six years after his death the whole rents, interests, profits, and proceeds of the residue, and to apply them in the way therein specified. By the sixth purpose he directed them during the six years to sell and realise the residue of his moveable estate, and certain parts of his heritable estate, and to "look out for and purchase with the proceeds of the said residue and reversion such lands or landed estate or estates in Scotland as they may consider proper, and shall entail the same and my other landed estates as after mentioned.' The trustees were empowered to delay the realisation and purchase if they thought it expedient, subject, however, to the following declaration - "Declaring, however, that after the said period of six years have expired, the institute or heir of entail in possession or entitled at the time to possess the lands and estates to be purchased as aforesaid under the destination hereinafter written, shall be entitled to demand and receive the interests and proceeds of the entire residue and reversion of my said estates, heritable and moveable, hereby conveyed, but under deduction always of such expenses and charges as may be incurred by my said trustees in the management and execution of the trust until the said lands or estates are purchased and entailed, and the whole purposes of the trust fulfilled." By the seventh purpose the trustees were directed, as soon as convenient after the said period of six years, to execute a deed or deeds of strict entail of the lands and estates directed to be purchased, and also of the lands and estates belonging to the truster at the time of his death, to and in favour of William Hamilton Dunlop, solicitor, Ayr, and the heirs-male of his body, and the heirs-male of their bodies, whom failing the heirs-female of the body of William Hamilton Dunlop, whom failing to other substitutes therein named. The period of six years expired on 30th September 1889. The trustees had during it applied a portion of the residue in purchasing an estate in accordance with the testator's wishes. There was, however, further personal estate to the amount of £350,000 which had not been so applied, and on 11th January 1890 William Hamilton Dunlop, who would have been the heir of entail in possession had the testator's directions been carried out as to the investment of the residue and the execution of the entail, presented a petition to the Court of Session under the Entail Acts for authority to acquire in fee-simple the whole heritable and personal estates vested in the trustees with the exception of £20,000 set apart to meet certain annuities provided under the disposition and settlement, and the sums required for Government duties, expenses, and other liabilities of the trust. In order to obtain the authority of the Court Mr Dunlop required the consents of the three next heirs. These heirs, who were his sons, were in pupillarity, and a curator ad litem was appointed to each of them. By arrangement with the curators ad litem, into which the Court was not asked to inquire, the value of their expectancies or interests in the whole estate was fixed to be £89,145, £10,000, and £1350 respectively, of which sums £72,700, £8160, and £1100 represented the value of their expectancies and interests in the personal estate. The sums of £10,000 and £1350, representing the compensation to the second and third heirs, were vested in trustees for their behoof, to be held until they attained majority, and then paid over to them. In the case of the first heir, however, a special arrangement was come to with his curator ad litem by which William Hamilton Dunlop, in lieu of making payment of the sum of £89,145, vested a sum of £153,073 in trustees, part of which sum was to be paid to the first heir at certain dates, and the remainder was to be liferented by William Hamilton Dunlop and paid over to the first heir on his death. On 22nd November 1890 the Lord Ordinary authorised and decerned the trustees to dispone, assign, and make over to William Hamilton Dunlop in fee-simple the whole heritable and moveable estate of the trust, with the exception of (1) the sum of |