Miller's Trustees v Miller
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1957 |
| Docket Number | No. 10. |
| Date | 27 November 1957 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Succession—Conditio si institutus sine liberis decesserit—Bequest of residue to nephews and nieces alive at death of widow—Codicil confirming bequest—Whether conditio applicable—Whether institutes to be determined as at date of bequest or date of codicil.
A testator who had no children provided by trust-disposition and settlement that on the death of his widow the residue of his estate should be divided equally among such of his nephews and nieces as might then be in life. Ten years later he executed a codicil by which he appointed new trustees but otherwise confirmed his settlement. Two of his nephews having died between the date of the settlement and the date of the codicil and a nephew and niece having died between the date of the codicil and the date of the widow's death, questions arose among the children of the predeceasing nephews and nieces and between these children and surviving nephews and nieces as to whether the conditio si institutus sine liberis decesserit operated and, if so, whether the two nephews who predeceased the date of the codicil were to be regarded as institutes.
Held that in the circumstances the conditio clearly applied; that the effect of the codicil was to confirm that the testator's institutes were those persons whom he had instituted by his original settlement; and that accordingly the children to benefit by application of the conditio included the children of the two nephews who predeceased the date of the codicil.
Bryce's Trustee, (1878) 5 R. 722, followed.
Robert Miller died on 27th December 1952 survived by his wife, who died on 20th January 1956. There were no children of the marriage. He left a trust-disposition and settlement dated 19th September 1936 and relative codicil dated 19th October 1946. By his trust-disposition and settlement he conveyed his whole estate to trustees for certain purposes, which included payment of the free annual income (under burden of certain annuities) to his wife during her life and payment on her death of a large number of legacies (including provision for a nephew, David William Miller). Finally he directed them:—"And in the Last Place on the death of my said wife should she survive me, or on my own death in the event of her predeceasing me, whichever of these events shall last happen, I direct my trustees after fulfilment of all the foregoing purposes to divide pay convey and make over the whole rest residue and remainder of my said means and estate to and among such of my own nephews and nieces (with the exception of my nephew the said David William Miller) as may then be in life, equally among them share and share alike." By his codicil the testator appointed new trustees, and thereafter provided:—"And with these alterations I confirm my said trust-disposition and settlement."
Apart from David William Miller, the testator was survived by three nephews and three nieces and predeceased by one niece and three nephews, of whom two died between the date of the trust-disposition and settlement and the date of the codicil and two (including the niece) died after the date of the codicil. No nephew or niece died in the interval between the death of the testator and the death of his widow.
Questions having arisen as to whether, on a sound construction of the trust-disposition and settlement and codicil, the residue of the testator's estate fell to be divided equally among the nephews and nieces of the testator alive at the date of death of the testator's widow, or whether the children of nephews and nieces who predeceased the testator's widow, or any of them, were entitled to participate in the division of residue by virtue of the conditio si institutus sine liberis decesserit, a special case was presented for the opinion and judgment of the Court of Session. The first parties were the testator's trustees; the second parties were those of his nephews and nieces who were alive at the death of his widow; thethird parties were children of the two nephews who died between the date of the trust-disposition and settlement and the date of the codicil; and the fourth parties were children of the nephew and niece who died between the date of the codicil and the death of the testator.
The contentions of the parties were stated as follows:—
"The first parties submit no contention.
"The second parties maintain that the residue of the testator's estate falls to be divided equally amongst themselves as the nephews and nieces of the testator alive at the date of death of the testator's widow, to the exclusion of the third and fourth parties. In any event they maintain that … the third parties are not entitled to participate in the division of said residue.
"The third parties maintain that they are entitled to participate in the division of the residue of the testator's estate along with the second and fourth parties, taking equally per stirpes the share which their fathers would have taken had they survived the testator's widow.
"The fourth parties maintain that they are entitled to participate in the division of the residue of the testator's estate along with the second parties, taking equally per stirpes the share which their respective parents would have taken had they survived the testator's widow. Alternatively and in any event they maintain that they are entitled to participate in the division of the said residue along with the second and third parties, taking equally per stirpesthe share which their parents would have taken had they survived the testator's widow."
The questions of law were:—"(1) Does the residue fall to be divided equally among the second parties, or (2) (a) are the third parties entitled to participate in the division of the residue, taking equally per stirpes the share which their respective parents would have taken had they survived the testator's widow, and (b) are the fourth parties entitled to participate in the division of the residue, taking equally per stirpes the share which their respective parents would have taken had they survived the testator's widow?"
The case was heard before the Second Division on 19th November 1957.
At advising on 27th November 1957,—
LORD JUSTICE-CLERK (Thomson).—The testator executed a trust-disposition and settlement in 1936. All but one of the persons named as trustees and executors having died, he made a codicil in 1946 appointing new trustees and executors. The codicil, which did nothing else, ended with the words, "and with these alterations I confirm my said trust-disposition and settlement." The testator died in 1952 survived by his wife, who died in 1956. There were no children of the marriage.
By the last purpose of his settlement the testator directed his trustees on the death of his widow to divide the residue of his estate among such of his own nephews and nieces (with one named exception for whom separate provision was made and with whom we have no
further concern) as might then be in life, equally among them share and share alike.The testator was survived by three nephews and three nieces, all of whom survive. He was predeceased by three nephews and one niece. Two of these nephews died between the date of the execution of the will and the date of the execution of the codicil; the remaining nephew and the niece died after the date of the codicil.
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