Friday, December 15.

FIRST

DIVISION. ANDERSON'S TRUSTEES v. MILLER. Succession-Testament-Liferent and Fee --Survivorship-Failure to Provide for Destination of Fee of Provisions except by Residue Clause-Destination-over to Issue subject to Liferent.

A testator directed his trustees to lay out the following sums- -"For behoof of each of my daughters, viz., £2000 to and for behoof of M in liferent, but for her liferent use allenarly, and to the lawful child or children of the said M, share and share alike if more than one, in fee." There were similar provisions in favour of the testator's other three daughters, and a declaration that the provisions were purely alimentary and not subject to jus mariti. There followed this provision-“And further declaring that should either of my said daughters die without being married or without leaving lawful issue the sum liferented by such deceased daughter shall fall and belong to her surviving brothers and sisters, share and share alike, the said shares falling to the brothers in fee and the shares falling to the sisters in liferent for their or her liferent use allenarly . . . and in the event of all my said daughters dying without leaving lawful issue the said principal sums liferented by them shall fall and belong to my said sons."

By the residue clause the testator divided the residue of his estate, "to and among my whole lawful daughters, share and share alike, declaring that should either of them have died before the said division leaving lawful issue, the share falling to such deceased parent shall fall and belong to such issue."

M died unmarried, predeceased by all her brothers and sisters except one sister. All the predeceasing brothers and sisters died unmarried except C, also a sister who left two children. Held that the income of the sum liferented by M fell to be paid to the surviving sister, and that on her death one-half of the capital fell to be paid to her children, the other half to the children of the predeceasing sister.

Mr James Anderson died on 24th June 1858 leaving a trust disposition and settlement dated 4th April 1849. He was predeceased by his wife and survived by the following children, Miss Mary Anderson, George Anderson, Miss Margaret Anderson, Mrs Miller, David Dickson Anderson, and Mrs Cleghorn.

By the sixth purpose of the trust disposition Mr Anderson provided-" I direct and appoint my said trustees or trustee, as soon after my death as they may find convenient and proper securities can be obtained, to lay out and invest in bank or on heritable or good personal security in their or his name, the following sums to and for behoof of each of my daughters, viz., the sum of £2000 sterling to and for

behoof of the said Mary Anderson in liferent, but for her liferent use allenarly and to the lawful child or children of the said Mary Anderson, share and share alike if more than one, in fee; The like sum of £2000 sterling to and for behoof of the said Margaret Anderson in liferent, but for her liferent use allenarly, and to her lawful child or children if more than one, share and share alike, in fee; The sum of £1500 sterling to and for behoof of Ann Anderson or Miller, wife of the said William Miller (the said William Miller having previously received from me the sum of £500 sterling to account of his wife's provision), in liferent, but for her liferent use allenarly, and to the lawful child or children of the said Ann Anderson or Miller, share and share alike if more than one, in fee; And the sum of £2000 sterling to the said Elizabeth Anderson in liferent, but for her liferent use allenarly, and to the lawful child or children of the said Elizabeth Anderson, share and share alike if more than one, in fee, beginning the first term's payment of said several sums of interest or revenue to my said daughters at the first term of Whitsunday or Martinmas making six months after my death; but declaring always, as it is hereby specially provided and declared, that the interest or annual revenue of the said several sums provided to each of my said daughters as aforesaid is intended by me and shall be considered as purely alimentary, and shall not be assignable by them or either of them, nor liable for their or her debts or deeds, nor attachable by the diligence of creditors, nor subject to the jus mariti of the said Ann Anderson or Miller's present husband or of any husband whom she may marry, or of any husband whom either of my said other daughters may marry, all which rights are hereby expressly excluded and debarred; And further declaring, that should either of my daughters die without being married or without leaving lawful issue, the sum liferented by such deceased daughter shall fall and belong to her surviving sisters and brothers, share and share alike, the said shares falling to the brothers in fee and the shares falling to the sisters in liferent for their or her liferent use allenarly, and subject to the whole conditions and provisions which such deceased sister held and enjoyed the interest or annual revenue of said sum, and no otherwise, and in the event of all my said daughters dying without leaving lawful issue the several principal sums above mentioned liferented by them shall fall and belong to my said sons, share and share alike, in fee; And further declaring, that my trustees or trustee shall have full power to uplift and re-invest the said principal sums as often as they or he may deem proper, and that without the consent or approbation of the party entitled to the interest or annual revenue of such principal sums."

said

By the seventh purpose it was provided,

With regard to the residue of my said estate, I hereby direct and appoint my said trustees or trustee, after all the purposes of this trust shall have been fully fulfilled, to pay and divide the free residue to and amongst my whole lawful daughters, share

Trs, v. Miller

15, 1899

and share alike; Declaring that should either of them have died before the said division leaving issue of her body, the share falling to such deceased parent shall fall and belong to such issue, share and share alike if more than one."

Miss Mary Anderson died in 1898, having been predeceased by all her brothers and sisters except Mrs Miller; of the predeceasers all died unmarried except Mrs Cleghorn, who left two children.

A special case was presented by (1) the trustees under Mr Anderson's - trust disposition, (2) Mrs Miller with consent and concurrence of her husband, (3) the children of Mrs Miller, and (4) the children of Mrs Cleghorn.

There was no residue remaining of the truster's estate. The sum involved in the case consisted of £2400, made up of the original sum of £2000 directed to be liferented by Miss Mary Anderson, together with her share, amounting to £400, of the capital sum liferented by Miss Margaret Anderson.

The contentions of the parties as set out in the case were "In the circumstances set forth, the second and third parties contend that the said Mrs Anne Anderson or Miller is entitled to the liferent use of the foresaid sum of £2400, and that on her death the capital sum falls, on a sound construction of the testator's settlement, to be divided equally among her children (the third parties), share and share alike, to the exclusion of the fourth parties. The fourth parties contend that, upon a sound construction of said trust-settlement of Mr Anderson, they, as representing their mother the said Mrs Elizabeth Anderson or Cleghorn, are entitled to payment of the capital sum of £1200, being one-half of the said sum of £2400 liferented by their aunt the said Mary Anderson, leaving the said Mrs Anne Anderson or Miller and her children to enjoy the liferent and fee respectively of the balance of said sum of £2400."

The questions submitted for the judgment of the Court were "(1) Is the said Mrs Anne Anderson or Miller entitled to the liferent use of the said sum of £2400, being the capital sum which was liferented by the said Mary Anderson? or (2) Is the said Mrs Anne Anderson or Miller entitled to the liferent use of only one-half of the said sum of £2400? (3) Are the fourth parties, as coming in room of their mother Mrs Elizabeth Anderson or Cleghorn, now, or on the death of Mrs Miller, entitled to payment of the sum of £1200, being one-half of the said sum of £2400? or (4) Are the children of Mrs Anne Anderson or Miller entitled in fee to the whole of said sum of £2400 payable at the expiration of their said mother's liferent?"

The second and third parties referred to the following cases in support of their contentions-Monteith v. Belfrage, March 7, 1894, 21 R. 615; Ward v. Lang, July 13, 1891, 18 R. 919; Hairsten's Judicial Factor v. Dincan, July 14, 1889, 18 R. 1158; Forrest's Trustees v. Rae, December 20, 1884, 12 R. 389. The fourth parties referred to the cases

of Paterson's Trustees v. Brand, December 9, 1893, 21 R. 253; Ramsay's Trustees v. Ramsay, December 21, 1876, 4 R. 243.

LORD PRESIDENT--The terms of the testator's settlement are by no means clear, but upon the whole I think that the first question, which relates to the liferent, should be answered in the affirmative; and the second in the negative.

The third and fourth questions relate to the fee; and it appears to me that the proper answer to the third would be that the fourth parties are entitled to one-half of the £2400, not now, but on the death of Mrs Miller; and that the fourth question should be answered in the negative.

The condition of the family is that only one of the immediate children, Mrs Miller, now survives; and that only one of the five deceased children, Mrs Cleghorn, is represented by children.

The provision upon which the controversy has mainly turned is, "Should either" (which here, as in other parts of the settlement, plainly means "any") "of my said daughters die without being married, or without leaving lawful issue, the sum life. rented by such deceased daughter shall fall and belong to her surviving sisters and brothers, share and share alike, the said shares falling to the brothers in fee, and the shares falling to the sisters in liferent for their or her liferent use allenarly, and subject to the whole conditions and provisions which such deceased sister held and enjoyed the interest or annual revenue of said sum, and no otherwise." There is here no express disposal of the fee of the shares liferented by daughters, and the question is, whether there is ground for implying a gift of the fee in favour of their children. It seems to be clear that the conditio si sine liberis decesserit will not avail Mrs Cleghorn's children, because she was not instituted.

The seventh purpose of the settlement, however, which deals with the residue, is of importance in this question. It is in the following terms-"With regard to the residue of my said estate, I hereby direct and appoint my said trustees or trustee, after all the purposes of this trust shall have been fully fulfilled, to pay and divide the free residue to and amongst my whole lawful daughters, share and share alike: declaring that should either" (which here again means "any") "of them have died before the said division leaving lawful issue of her body, the share falling to such deceased parent shall fall and belong to such issue, share and share alike if more than one. The word "falling" is not quite correctly used here, because a share cannot "fall" to a predeceasing child, and therefore the word "falling" must mean “provided," or "which would have fallen" to such deceased parent if she had survived, failing which it is to go over to her children. If that be so, survivorship on the part of the parent is not essential to give the children right to a share of the fee; and it appears to me that under this clause Mrs Cleghorn's children

are entitled to one-half of it.

But then, if what I have already said as to the liferent which accrued to Mrs Miller is correct, the gift of the fee to Mrs Cleghorn's children must be subject to that liferent, and it is not "now," as put in the third question, but only on the death of Mrs Miller that Mrs Cleghorn's children will be entitled to half the fee.

LORD M'LAREN While this question arises on the construction of Mr Anderson's will, our judgment is only asked upon one provision of the will, a legacy to a daughter Mary Anderson, who died unmarried.

Each of the four daughters of the testator received a pecuniary provision, and the sons, I think, got nothing except what they might take by survivance of their sisters. It is stated in the case that there is no residue except what may fall into it in consequence of the decision which your Lordships are to give. Now, the question arises in consequence of the death of Mary Anderson, who had only a liferent, and it seems to me to be absolutely clear that Mrs Millar, who is the only surviving sister of the four, takes under the will a life interest in succession to her sister Mary. I can see no grounds for restricting her liferent to one-half of Mary's share in order that the issue of the predeceasing sister might have their shares anticipated, because the liferent is in express words to the surviving sisters, and this lady is the sole survivor. But the difficulty in the case, I think, arises with regard to the destination of the fee. Now, if this had been a case of an ordinary share which the testator had given in liferent, or as an income in life to the daughter, and then had gone on to say, "And in case of the death of my daughter without issue the share shall be divided amongst the survivors," I should not have had much difficulty in holding that there was a gift to the issue by implication, because the expression is obviously elliptical, and there is no way of supplying the ellipsis except by reading a gift to issue into the clause. There could be no reason to contemplate the particular case of the death of the liferenter without issue, except that if there are issue they were intended to take, and no further provision would then be necessary. But then this is a case of accretion amongst the liferenters, and the only provision for the fee is that in the event of all the daughters dying without leaving issue, the division is to be amongst the sons. Now, it is plain that there are various contingencies that might arise besides that of the death of all the daughters without issue. There might be some of them dying with issue and some dying without issue, and we have no means of knowing what the testator would have done if he had made a complete appropriation of the fee applicable to all these events. I think it is perfectly impossible, on any sound principle of construction, to supply what is defective in this clause. Fortunately we have a residue elause which answers the same purpose, for it is a well-settled rule that when contingencies as to legacies are not provided for

the subject of the bequest will fall under the residuary clause. I am therefore of opinion that the fee vests in the children of the two ladies subject to the liferent interest of one of them.

LORD KINNEAR-I agree.

LORD ADAM was absent.

The Court pronounced this interlocutor"Answer the first question in the case in the affirmative, and answer the second question in the negative: And in answer to the third question, Find that the fourth parties to the case, as coming in room of their mother Mrs Elizabeth Anderson or Cleghorn, are entitled to payment of the sum of £1200 on the death of Mrs Anne Anderson or Miller: And answer the fourth question in the negative," &c.

Counsel for the First Parties N. J. Kennedy. Agents Strathern & Blair, W.S.

Counsel for the Second and Third Parties

- Macfarlane-Constable. Agents - Carment, Wedderburn, & Watson, W.S. Counsel for the Fourth Parties-Guthrie, Q.C.-M'Clure. Agent-P. Adair, S.S.C.

DICK AND OTHERS, PETITIONERS. Trust-Petition for Removal of TrusteeAppointment by Court of New TrusteeNobile Officium.

The two surviving trustees under a postnuptial contract of marriage and trust-settlement having failed to agree as to the management of the trustestate, a petition was presented to the Court by one of them, with the concurrence of all the beneficiaries under the trust, for the removal of the other trustee, or alternatively for the appointment of a new trustee named by the petitioners to act upon the trust. ground upon which the petitioners supported their petition was, that owing to the refusal of the respondent to sign the discharge of a bond the affairs of the trust were at a deadlock.

The

After the petition had been presented the discharge in question was signed by the respondent. The respondent, in answers lodged by him, objected to the appointment of the trustee named by the petitioners, but in the course of the debate he intimated that he had no objection to him personally, and that he would assent to his being assumed as an additional trustee.

The Court refused the prayer for removal, but appointed the new trustee named by the petitioners.

A petition was presented by Mr John Dick, trustee acting under the postnuptial contract of marriage and trust-settlement of

Mrs Janet Robertson and her husband, the late Dr George Robertson, and by the said Mrs Robertson and her son Cecil James Robertson, the beneficiaries under the trust, craving the Court "to remove Alexander Mitchell Carnwath Dick from the office of trustee under the said postnuptial contract of marriage and trust-settlement of the said Mrs Janet Train Lawrie or Robertson and George Robertson, or otherwise to appoint David Robertson as a trus tee under said contract of marriage, with the powers contained therein, and in the statute, including a power to assume new trustees." Dr Robertson died in 1883 survived by his wife, and Messrs John Dick, Peter Robertson, and William Milne accepted office as trustees, and continued to act as such till the death of the two last-named gentlemen. Thereafter in December 1886 Mr John Dick assumed his son Alexander Mitchell Carnwath Dick as a trustee under the trust.

The present petition was presented by Mr John Dick, with the concurrence of the liferentrix Mrs Robertson and of her son Cecil James Robertson, the only other beneficiary under the trust.

66

The petitioners averred that in or about May 1897 the agent in the trust having forwarded to the said Alexander Mitchell Carnwath Dick for his approval a proposal for loan of part of the trust-funds, he, in answer, replied on 15th May 1897-' Robertson's M.C. Trust. I return the proposal for loan of £300. I really do not see what's the good of me bothering with this trust, and do not longer wish to act as trustee. You can date my resignation_therefore from the time of the last loan.' Thereupon a formal minute of resignation was forwarded to him for his signature, but he has not signed or returned the said deed. That part of the trust investments consists of a bond for £150 over a property in Argyle Place, Edinburgh, which loan fell to be paid off in terms of notice at Martinmas 1899. A discharge of the said bond was on 31st October 1899 forwarded to the said Alexander Mitchell Carnwath Dick for his signature as trustee foresaid, and although requested to return the deed signed he refused to do so, or even to answer the communications. The want of the said discharge is causing loss and inconvenience not only to the trust but to the borrower. That the administration of the trust has thus been brought to a standstill, and will so remain unless the said Alexander Carnwath Dick is removed or some other person assumed to act along with him and the petitioner, the said John Dick."

Answers were lodged by Alexander Dick, who denied that the administration of the trust had been brought to a standstill, or that he had refused to sign the discharge of the bond referred to by the petitioners. He stated that he had reason to complain of certain conduct of the agent of the trust, and averred that the sole object of the petition was to enable the trust to be brought to a close by paying over the trust funds to the petitioner Mr Cecil James Robertson, which course, he was of opinion, could not

be safely followed till after the death of the liferentrix, and that he objected to the appointment of Mr David Robertson, who was the uncle of Mr Cecil Robertson, on that ground. After the presentation of the petition the discharge of the bond in question was duly signed by the respondent.

The petitioner argued that as the trust had come to a deadlock the respondent should be removed, or failing that course that a new trustee should be appointed to act along with himself and the respondent Aikman and Others, Petitioners, Dec. 2, 1881, 9 R. 213.

The respondent in the course of the discussion intimated his willingness to assent to the assumption of Mr David Robertson as an additional trustee, on the understanding that he would follow the opinion of the Solicitor-General as to the winding up of the trust. He argued that the petition was uncalled for, and should be dismissed.

LORD PRESIDENT-It seems to me that there are scarcely sufficient grounds for removing the respondent from the office of trustee. His letter of 15th May 1897, followed by his declinature to sign the minute of resignation, would prima facie go far to warrant his removal, but it appears that he is now willing to continue in the trust, not for the purpose of obstructing, but of co-operating in, its due administration. I think we may accept his disclaimer of adherence to the attitude which he formerly assumed, and refuse the prayer for his removal. But it is plain that the trust administration had come to a dead lock when the petition was presented, and although it is to be hoped that the relations of the present trustees towards each other may now be more cordial than they have hitherto been, there is no security that this will be so. Accordingly, it seems to me that there should be a third trustee. understand that respondent has no objection to Mr Robertson-indeed, his counsel intimated that he is now willing to assume him. Under these circumstances I think the best course will be to appoint Mr Robertson as a trustee, so that there will be an odd number of trustees, and the risk of a deadlock in future will be avoided.

I

LORD M'LAREN--I am of the same opinion. I am not satisfied that the respondent had any justifiable ground of complaint against the trust administration, unless on the one point of the deposit-receipt being taken in the name of the agent. There is certainly no proof that the other trustee desired to wind up the trust prematurely. What is disclosed by the correspondence is that in consequence of a claim or wish expressed by the beneficiaries that the capital should be divided, the trustees proposed to take the opinion of counsel. That seemed to be an entirely proper position on the part of the trustees.

LORD ADAM and LORD KINNEAR Concurred.

The Court pronounced this interlocutor-

"Refuse the prayer of the petition in so far as it craves the removal of the

respondent the said Alexander Mitchell Carnwath Dick from the office of trustee under the postnuptial contract of marriage and trust-deed of settlement of Doctor and Mrs George Robertson, and of consent appoint David Robertson, Esquire, 4 Maitland Street, Edinburgh, to be a trustee under said contract of marriage and deed of settlement, with the powers contained therein and in the Trust (Scotland) Act 1867, including the power to assume new trustees: Further, authorise the said trustees to complete a title habili modo to the trust-estate set forth in the prayer of the petition: Allow the expenses of the petitioners to be taken out of the funds of the trust-estate: And quoad ultra find no expenses due to or by any of the parties, and decern."

Counsel for the Petitioner-C. D. Murray. Agent-Marcus J. Brown, S.S.C.

Counsel for the Respondent J. D. Millar. Agents-Duncan & Black, W.S.

Saturday, December 16.

SECOND

DIVISION.

WINN v. QUILLAN.

(Ante, October 27, 1899, p. 38). Expenses-Jury Trial-Certificate by Presiding Judge-Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 40.

By section 40 of the Court of Session Act 1868 it is enacted - 66 'Where the pursuer in any action of damages in the Court of Session receives by the verdict of a jury less than £5, he shall not be entitled to recover or obtain from the defender any expenses in respect of such verdict, unless the judge before whom such verdict is obtained shall certify on the interlocutor sheet that the action was brought . . . for the vindication of character and was in his opinion fit to be tried in the Court of Session."

Opinion (per Lord Young) (1) that the only effect of granting such a certificate is to put the awarding of expenses within the power of the Court, and that it does not per se entitle the pursuer to an award of expenses; and (2) that the motion for a certificate should be made in presence of the defender. Peter Winn raised an action of damages against James Quillan for having falsely and calumniously on six separate occasions, extending over a period of ten years, called him an informer, thereby representing that the pursuer was a man who for the sake of reward and from sinister and disreputable motives had betrayed his fellows and disclosed secrets or given information to the Crown or its executive against Irishmen and others, to the loss, injury, and damage of the pursuer.

The Court sustained the relevancy of the action (ante, p. 38), and six issues were adjusted, one for each occasion, and damages laid at £500.

The case was tried before the Lord JusticeClerk and a jury. The jury returned a verdict for the pursuer on (all the issues and assessed the damages at one farthing. Thereafter, on the application of the pursuer, made without intimation to and not in the presence of the defender, the Lord Justice Clerk granted the pursuer a certificate to the effect that the action was brought for vindication of character and was fit to be tried in the Court of Session.

The pursuer moved for his expenses, and argued The presiding judge who had tried the case had granted a certificate, and this showed that in his opinion the pursuer was entitled to expenses. Where a pursuer succeeded in obtaining a verdict and damages for slander, and received a certificate from the judge presiding at the trial, he was entitled to his expenses even though the damages given were nominal-Craig v. Jex Blake, July 7, 1871, 9 Macph. 973; Bonnar v. Roden, June 1, 1887, 14 R. 761; Macmillan v. Wilson, October 25, 1887, 15 R. 6. Where the pursuer had failed on some of his issues there might be modification-Rogers v. Dick, February 4, 1864, 2 Macph. 591-but in the present case he had been successful all along the line.

Argued for defender-The statute only provided for what was to happen as regards expenses in the event of the pursuer not getting a certificate from the judge; it did not say what expenses he was to get in the event of his getting a certificate. This question was accordingly left to be determined by the common law. The Court were entitled to modify expenses in actions which ought to have been brought in the Sheriff Court or where juries had awarded small sums of damages Jamieson v. Hartil, February 5, 1898, 25 R. 551; Shearer v. Malcolm, February 16, 1899, 1 F. 574. And in Graham v. Napier, January 21, 1874, 1 R. 391, the expenses were modified notwithstanding that the certificate had been granted. The present was a typical case for modification. It should have been brought in the Sheriff Court; there had been unnecessary delay, and some of the issues were superfluous.

LORD JUSTICE-CLERK-I do not think that this is a case for modification of expenses on any ground connected with the verdict. I think the case was one in which the pursuer was entitled to raise an action in the Court of Session for vindication of his character, and one in which the pursuer could not have allowed the course of slander to which he was persistently subjected to be continued without grave consequences to himself. I was of that opinion when I granted the certificate, and I still think that nothing came out at the trial to preclude the pursuer from getting that certificate. I am therefore of opinion that the pursuer is entitled to the expenses of the trial without modification.