Currie's Trustees v Collier
| Jurisdiction | Scotland |
| Judgment Date | 19 January 1939 |
| Date | 19 January 1939 |
| Docket Number | No. 27. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Vesting—Vesting of class gifts—Gift of fee to children of liferentrix with gift over "failing" such children—Whether fee vested in an only child of the liferentrix who predeceased her.
Succession—Construction of testamentary writings—Admissibility of reference to terms used in revoked codicil for purpose of construing terms used in will.
A testator, by his settlement, directed his trustees to pay the interest of a sum of money and of a share of residue to his niece during her life and to pay the principal to her children, and "failing" such children to other legatees. By a codicil he bequeathed the liferent of a heritable property to the niece, and directed his trustees, upon her death, to convey the fee to her children and to the survivors of them or their issue, and "failing" her children or their issue he directed that the fee should fall into residue. By a later codicil he altered this provision by directing his trustees to convey the property to the niece in fee. The niece had an only child who predeceased her.
Opposing claims to the sum of money and share of residue were put forward by the representative of the niece's child, and by the representatives of the legatees under the gift over.
Held that the general rule was that a reference in a testamentary writing to failure of children meant failure of children to come into existence, but that the testator's use of the words failing her children in the codicil showed that by failure of children he there meant failure to survive the parent, and, accordingly, that, as he could not have intended the children to take as residue what they failed to take under the codicil, the same meaning must be put on these words when used in the settlement, with the result that no right had vested in the niece's child.
Opinions that it was legitimate to consider the terms of the provision in the codicil in order to discover what the testator meant by failure of children, although the provision in the codicil had subsequently been revoked.
Thomson v. Scougalls, (1835) 2 Sh. & M'L. 305,commented on.
Normand's Trustees v. NormandUNK, (1900) 2 F. 726,disapproved.
David Currie of Craigshields died unmarried on 21st June 1886, leaving a trust-disposition and settlement dated 27th August 1873 and four relative codicils. By his settlement he conveyed his whole estate to trustees for the following purposes, inter alia:—"Quarto. For payment of the following Legacies and such other Legacies as I may bequeath by any Codicil to be made hereto, or by any writing under my hand expressive of my will, though not formally framed, videlicet:—… Fifteen hundred pounds to be invested by my Trustees in their own names in heritable security, good railway Mortgage, or such other investment as they may consider safe, the interest, dividends and annual profits thereof to be paid to the said Elizabeth Rogerson Collier, my Niece, termly as they receive the same during all the days of her life, and the principal to be paid to her children equally among them, and failing such children one-half thereof to be paid to her next of kin and the other half to the said Samuel Currie and his heirs; … And in the event of the Residue of my means and estate, other than the said Lands of Craigshields and others, being greater or less than the amount of the legacies bequeathed and that may be bequeathed by me, the said legacies shall be proportionally increased or diminished accordingly."
By his first codicil dated 24th November 1875 the testator directed his trustees to give to his sister Margaret Currie and his niece Elizabeth Rogerson Collier, and to the survivor, the liferent of a property called Fairfield belonging to him, and further provided:—"And upon the death of the said Margaret Currie, and Elizabeth Rogerson Collier, I direct my said Trustees to convey and pay over the premises liferented under these presents to the child or children of the said Elizabeth Rogerson Collier, in fee, equally share and share alike, and to the survivors and survivor, the issue of such as may have predeceased being entitled to the parent's share, and failing the said Elizabeth Rogerson Collier and her child or children, and their, his or her issue, the same shall form part of the Residue of my said Means and Estate, and I leave and bequeath the same, and direct accordingly."
By his third codicil dated 7th April 1884 the testator provided as follows:—"I, David Currie, Esquire, of Craigshields, have resolved to make the following alterations on my Trust Disposition and Deed of Settlement, dated twenty-first [sic] August, eighteen hundred and seventy-three, and relative Codicils dated respectively twenty-fourth November, eighteen hundred and seventy-five, and twentieth March, eighteen hundred and eighty-four, as follows:—With reference to the first Codicil to my said Trust Disposition and Settlement, I hereby direct my Trustees to give to my said...
To continue reading
Request your trial
-
Devlin's Trustees v Breen
...Charter v. CharterELR, (1874) L. R., 7 H. L. 364,applied. M'Lachlan v. Seton's Trustees, 1937 S. C. 206, andCurrie's Trustees v. Collier, 1939 S. C. 247,distinguished. Mrs Grace Cochrane Darney or Devlin died on 8th December 1941 leaving a trust-disposition and settlement dated 5th July 193......
-
Devlin's Trustees v Breen
...cases to which the learned Judge refers are the cases of McLachlan v. Seton's Trustees, 1937 S.C. 206, and Curries Trustees v. Collier, 1939 S.C. 247. These appear to have been two instances of ambiguity as to the subject matter of a testamentary bequest or as to the identity of the benefic......
-
Lipton's Trustees
...the language used in the now superseded part of clause 6 of the willand possibly on the ground stated in Currie's Trustees v. CollierSC, 1939 S. C. 247, it isthere would seem to be little doubt that the testator did intend the local limitation to apply to the infirmaries and hospitals which......