Viscount Dunedin.-There have been lately too many of these cases brought up here upon this question under the Act of George III. (48 Geo. III. cap. 151), not, I think, altogether due to the fault of the parties concerned, because I do not think the matter has been laid down with sufficient clearness, although I think the whole gist of it is really to be got out of Lord Loreburn's opinion in the case of Beattie v. Corporation of Glasgow (1917 S.C.(H.L.) 22).

I take it that the criteria for deciding all these cases are contained in these following four propositions: (1) The disability imposed on this House which forbids the hearing of appeals against interlocutory judgments when there has been no difference of opinion in the Court below and no leave to appeal has been

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granted, is statutory, and cannot be got over either by the action of this House or by consent of parties. (2) The right to grant an appeal against an interlocutory judgment is confided to the Court of Session, and their discretion cannot be controlled by this House. (3) The right of appeal remains where the judgment, though interlocutory in form, is final in substance. (4) The test of finality in substance is to see whether the case would have been equally decided in substance whether the interlocutor under discussion had been pronounced as it was or had been pronounced to the opposite effect.

Applying those propositions to the case in hand, it is a clear case for refusing the leave to appeal.

I would like to say that I think before the Court of Session there was a very great deal to be said for the present appellant, but, at the same time, the Court came to another conclusion.

Lord Atkinson, Lord Shaw of Dunfermline, Lord Sumner, and Lord Blanesburgh concurred.

Agents for Defender and Appellant, P. Morison & Son, W.S.-Agents for Pursuer and Respondent, Dundas & Wilson, C.S.

2.

HOUSE OF LORDS.

(Viscount Dunedin, Lords Atkinson, Shaw of Dunfermline, Wrenbury, and Carson.)

26th November 1926.

Young's Trustees v. Young. Succession-Will-Residue - Accretion - Direction to trustees 66 to realise the whole residue of my means and estate, and to divide the same among my three sisters before mentioned and the survivors of them and the children of my late brother W. S. Y. equally per stirpes -The three sisters all predecease the testator Held (reversing judgment of First Division) that there was accretion in favour of the children of W. S. Y., and that they were entitled to the whole residue Observation on Paxton's Trs. v. Cowie (13 R.

1191).

(Reported ante, 1926, S.L.T. 532.)

Appeal from Interlocutor of the First Division (The Lord President, Lords Blackburn and Ashmore (Lord Sands dissenting)).

The claimants, William Stewart Young and others, appealed to the House of Lords.

On 26th November 1926 their Lordships reversed the interlocutor appealed from, and remitted the cause to the Court of Session with a direction to rank and prefer the claimants, the family of the late William Stuart Young (the appellants), to the whole fund in medio.

Viscount Dunedin.-This is an action of multiple poinding brought by the trustees of the late Robert Young, who died unmarried on 29th December 1924. He left a trust disposition and settlement dated 25th November 1897, and the question that arises is upon the construction of the last purpose of the settlement. By this settlement he left the whole of his estate to trustees. They were directed to pay certain legacies and provide certain annuities, and then the settlement proceeds:

"(Lastly) I direct my trustees to realise the whole residue of my means and estate, and to divide the same among my three sisters before mentioned and the survivors of them and the children of my late brother William Stewart Young equally per stirpes. Declaring that in the event of the death of any of the beneficiaries under this settlement leaving lawful issue, such issue shall be entitled equally among them to the share or benefit to which their parent would have been entitled by survivance.'

The three sisters before mentioned were Eliza Young, Mrs Reid, and Susan Stewart Young. The testator's three sisters all predeceased him, but the family of his brother William survived and are the claimants for the whole fund. The other claimants are the children and grandchildren of his sister Mrs Newnham, who had predeceased him, and they claim as heirs ab intestato three-quarters of the fund in medio. The Lord Ordinary upheld their claim, and his judgment was adhered to by a majority of the First Division (dissentiente Lord Sands). Appeal is brought against that judgment.

The argument that has prevailed is that there was a severable bequest of the residue into fourths, one-fourth to each of the three named sisters and the remaining one-fourth to the family of the brother, and as the sisters had failed to survive to take their shares they fall into intestacy.

The leading case on this branch of the law is undoubtedly the case of Paxton's Trs. (13 R. 1191). That case is a case of great authority. It was a seven-judges case and a unanimous judgment. It laid down no new law, for in reality the same had been decided in cases a

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1926.

century old; but it stated the law with great precision, and do not apprehend that anything your Lordships will say to-day will throw Young's the slightest doubt on the soundness of that Trs. v. decision. Its import is very clearly expressed Young. by Lord President Inglis, who had himself de- November 26, livered the judgment of the consulted judges in Paxton's case, in the case of.Muir's Trs. v. Muir (16 R. 954). In Paxton's case itself the learned judge had pointed out that the rule was not cast iron, but must give way to ether indications to be found in the deed indicative of the wishes of the testator. Now, here is what he says: "Now the case of Paxton's Trs. established the important general rule, which is thus expressed as the result of the judgment, that where a legacy is given to a plurality of persons named or sufficiently described for identification "equally among them," or "in equal shares," or share and share alike," or in any other language of the same import, there is (in the absence of expression by the testator importing a contrary intention) no room for accretion in the event of the predecease of one or other of the legatees . . . . and that whether the subject of the gift be residue or a sum of fixed amount or of corporeal moveables.' But he then goes on to say: Now the first condition for the application of the rule is that the person to whom the legacy is left must either be named or sufficiently described for identification. It cannot therefore apply to a class of persons of unascertained number."

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I turn now to the words in the present case. The argument that has prevailed necessarily assumes that there is a bequest of a quarter share, the fraction being reached by the number of persons who form the divisor-one-quarter to each of the sisters—and that the case then falls under the general rule of Paxton. But there is no such bequest. The only bequest de plano is the conveyance to the trustees. Then when you come to the trust purposes the trustees are at the moment of death to search for the persons designated. These persons are not the sisters individually and the family of the brother, they are such of the sisters as may be found to be survivors and the family of the brother. I think, therefore, that there is here no identification in the events as they turn out of the persons who were to share in severance with the brother's family. And there being no such persons, the word "divide " becomes equivalent to the word "pay," which it always includes. Some of the judges have thought that their view was helped because the expression "per stirpes" pointed to what they have called " stirpital division." I think the import of the expression "per stirpes" is not doubtful. It was necessary in order to prevent the various members of the family of

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