1918.

WHOLE 9 Ch. D. 658; Jarman on Wills, 6th ed., p. COURT. 1580). Maxwell v. Maxwell (cit.) was distinWylie's guishable, and in Stodart's Trs. (cit.) the present Trs. V. question was not decided. If Lord Kyllachy's Bruce. dictum in Thompson's Trs. v. Jamieson (cit.) were December 21, read in the sense contended for by the second party it was inconsistent with Gregory's Trs. v. Alison (cit.). It was a well-established rule that the mere interposition of a liferent did not postpone vesting (Wallace v. Wallace, 1807, M. App. voce "Clause," No. 6; Maxwell v. Wylie, cit.; Forbes v. Luckie, 1838, 16 S. 374; Kilgour v. Kilgour, 1845, 7 D. 451). It followed that a suspensive condition expressed with regard to the institute was not to be read by implication into a gift in favour of a conditional institute (Newton v. Thomson, cit., per Lord Fullerton; Lindsay's Trs., cit., per Lord President Inglis; White's Trs. v. White, cit.; Bowman v. Bowman, 1 F. (H.L.) 69, per Lord Davey at p. 77; Gardner v. Hamblin, cit.; Ferguson's Trs., cit.). Anderson v. Cuninghame's Trs. (cit.) was distinguishable-the question there was whether the doctrine of vesting subject to defeasance should be extended. Highet's Judicial Factor v. Hamilton (cit.) was unsound and was overruled in Anderson's Trs. v. Forrest (cit.). This question had given rise to a long controversy in England (cf. Bennett v. Merriman, 1843, 6 Beav. 360; Macgregor, 1845, 2 Coll. C.C. 192; In re Kirkman's Trusts, 1859, 3 De G. & J. 558; Penny v. Clarke, 1860, 1 De G. F. & J. 425; In re Corrie's Will, 1863, 32 Beav. 426, with Lyon v. Coward, 1846, 15 Sim. 287; Barker v. Barker, 1852, 5 De G. & Sm. 753; Bellamy v. Hill, 1854, 2 Sm. & G. 328; Thomson v. Clive, 1857, 23 Beav. 282; In re Wildman's Trusts, 1860, 1 J. & H. 299; In re Pell's Trust, 1861, 3 De G. F. & J. 291; Lamphier v. Buck, 1865, 2 Dr. & Sm. 484; In re Merricks' Trusts, 1866, L.R., 1 Eq. 551) until it was settled in favour of the third parties' view by the case of Martin v. Holgate (cit.). Martin v. Holgate (cit.) was law in Scotland (Campbell's Trs. v. Dick, cit.; cf. Macfarlane's Trs. v. Macfarlane, 1906, 8 F. 787; Banks' Trs. v. Banks' Trs., cit.; Addie's Trs. v. Jackson, cit.). The authorities shewed that the gift to the heirs in heritage of Alexander Andrew Bruce was an independent and not a substitutional gift; but even if that were not so there was no reason for implying the condition that the heirs must survive the liferentrix (In re Turner, 1865, 2 Dr. & Sm. 501; Theobald on Wills, 7th ed., p. 676). Accordingly there was nothing to prevent the heir taking a vested interest at the death of the institute on the principle enunciated by Lord Colonsay in Carleton v. Thomson (1867, 5 M. (H.L.) 151).

Argued for the Fourth, Fifth, Sixth, and Seventh Parties in their minute of debate: Vesting took place in Alexander Andrew Bruce a morte testatoris. Derivative destinations over in favour of persons identified only by their relationship to a primary named beneficiary did

not indicate an intention on the part of the testator to postpone vesting. This principle probably received its most definite expressionin Hay's Trs. v. Hay (cit.), but it was recognised in a number of earlier cases (Marchbanks v. Brockie, 1836, 14 S. 521; Maxwell v. Wylie, 1837, 15 S. 1005; Learmonth v. Cochrane's Exrs., 1854, 17 D. 103; Donaldson's Trs. v. Macdougall, 1860, 22 D. 1527; Douglas v. Douglas, 1864, 2 M. 1008; Hendry's Trs. v. Hendry, 1872, 10 M. 432; Elliott v. Bowhill, 1873, 11 M. 735; Jackson v. MacMillan, 1876, 3 R. 627; Wilson's Trs. v. Quick, 1878, 5 R. 697; Archibald's Trs. v. Archibald, 1882, 9 R. 942; Waters' Trs. v. Waters, 1884, 12 R. 253; Ross' Trs. v. Ross, 1884, 12 R. 378). Hay's Trs. (cit.) was repeatedly followed (Richard's Trs. v. Rowland, 1894, 22 R. 140; Ross's Trs. v. Ross, 1897, 25 R. 65; Mellis v. Mellis' Trs., 1898, 25 R. 720; Mackinnon's Trs. v. MacNeill, 1897, 24 R. 981; Bowman v. Bowman, 25 R. 811) until the case of Bowman v. Bowman camebefore the House of Lords (1 F. (H.L.) 69). The opinions of Lord Watson and Lord Davey were no doubt inconsistent with the principle of Hay's Trs. But the Lord Chancellor dealt with the case on the special terms of the will under consideration, and Lord Shand (who was a party to the decision in Hay's Trs. (cit.), and who had cited that case in Hickling's Trs. v. Garland's Trs. (1898, 1 F. (H.L.) 7)) evidently did not regard Hay's Trs. as being overruled. Since the decision in Bowman's case much doubt had prevailed as to whether the rule of Hay's Trs. was still valid, and the judgments of the Court of Session on the question were conflicting. In Parlane's Trs. v. Parlane (1902, 4 F. 805) and Forrest's Trs. v. Mitchell's Trs. (1904, 6 F. 616) derivative destinations were held to suspend vesting-these cases being both decided by the First Division. On the other hand, in Matheson's Trs. v. Matheson's Trs. (1900, 2 F. 556), Taylor's Tr. v. Christal's Tr. (1903, 5 F. 1010), and Ogle's Tr. v. Ogle (1904, 6 F. 359), the rule established in Hay's Trs. case was treated as still operative. Thompson's Trs. v. Jamieson (cit.) was referred to. The cases of Cairns' Trs. v. Cairns (cit.) and Marshall's Trs. v. Campbell (cit.) were really inconsistent with the dicta in Bowman (cit.). The true inference from the authorities was that the rule established in Hay's Trs. was still law. There was nothing in the terms of the will to prevent the application of that rule to the present case. In particular, the fact that the heirs called were described as heirs in heritage did not give rise to an inference that they were called as personæ prædilectæ. Nor was there any distinction between the word "or" which was used in the present case and the word "and which was present in Marshall's Trs. v. Campbell (Bowman v. Bowman, 25 R. 811, per Lord Stormonth-Darling at p. 814 and Lord M'Laren at p. 818; 1 F. (H.L.) 69, per Lord Watson at

p. 72; Maxwell v. Wylie, cit.; Cochrane's Exrs., cit.; Hay's Trs., cit.).

The consulted judges returned the following opinions :

The Lord Justice-Clerk.-Two points have to be considered in this case, the first of which is, When did vesting take place?

This falls to be determined according to the intention of the truster as expressed in his settlement. On the terms of the settlement itself the answer appears to me clear.

The truster conveyed his whole means and estate to his trustees. These trustees were to allow his widow to enjoy the liferent use of his dwelling-house, No. 17 Blackford Road, during her lifetime. The trustees were also to set apart the sum of £3000, which they were to hold in their own names for his widow in liferent. On the death of his widow the trustees were to convey the house to Lieutenant-Colonel Alexander Andrew Bruce or his heirs in heritage, and to pay to him or these heirs the said sum of £3000.

I think the plain meaning of the deed is that the trustees were to remain vested in the house and the money till the liferenter's death, when they were to find out who was entitled to the conveyance of the house and the payment of the money. It was only, in my opinion, on the death of the liferenter that the vesting of the fee in the beneficiaries took place. The testator seems to me to have said that as plainly as language can express it.

In my opinion, what, strictly speaking, were opinions expressed by Lord Watson and Lord Davey in Bowman's case, so far as these opinions agree, must be accepted as correctly expressing what is the law of Scotland, and decisions or judicial opinions contrary thereto can no longer be accepted as sound.

I think it right to add that, in my opinion, in dealing with questions of vesting, there has been too often a tendency to cloud the issue by references to decided cases and judicial expressions of opinion, to an extent which has not infrequently had the result of obscuring the meaning of the testator. No more sound or sagacious view was, in my opinion, ever expressed in this department of the law than when Lord President Inglis said, in Bryson v. Clark, "It is in vain to review the authorities in a question of this kind." The same idea was expressed by Lord Halsbury when he protested against construing one man's will in the light of another man's will.

As to the word "or," that may, no doubt, in certain circumstances, be open to construction, just as the word "and" may be. In the present case "or," in my opinion, means "or," and nothing more or less.

The second question is, At what date are the heirs in heritage to be ascertained-at the date

Bruce.

of the death of the liferenter or at some other WHOLE and earlier date? In my view in this case the COURT. heirs fall to be ascertained at the date of the Wylie's death of the liferenter. Once the date of vesting Trs. v. has been fixed I think one has gone a long way to solve this question also. I accept as sound the views expressed by Lord Kyllachy in the case of Thompson's Trs. (2 F. 470), and the two decisions of Maxwell (3 M. 318) and Stodart's Trs. (8 M. 667) on which he relies.

In my opinion the questions in the special case should be answered as follows: the first two in the negative and the third in the affirmative.

Lord Dundas.-By the destination which we have here to construe, the testator, after directing his trustees to allow his wife, if she should survive him, as she did, to enjoy the liferent use of his dwelling-house in Edinburgh during all the days and years of her lifetime, together with the whole household furniture and plenishing therein, provided that on the death of his wife the trustees should convey and deliver to his cousin, Alexander Andrew Bruce, "or his heirs in heritage," the said dwelling-house, together with the said furniture, etc. (since sold), and to pay to him, "or his heirs in heritage," the sum of £3000 thereinafter provided to be liferented by the testator's wife. That lady died on 11th February 1917. Alexander Andrew Bruce survived the testator, but predeceased the liferentrix, dying on 17th January 1908. eldest son, Alexander Montgomery Bruce, who was his heir in heritage at that date, also predeceased the liferentrix, dying on 24th November 1909. Lewis Campbell Bruce, second son of Alexander Andrew Bruce, was his father's heir in heritage at the date of the death of the liferentrix, and still survives. We are asked to determine whether the dwelling-house, the price of the furniture, etc., and the £3000, vested (1) a morte testatoris in Alexander Andrew Bruce, or (2) at the death of the latter in Alexander Montgomery Bruce, or (3) on the death of the liferentrix in Lewis Campbell Bruce. I am for answering the first and second of these alternative questions in the negative, and the third in the affirmative.

His

Vesting did not, in my opinion, take place in Alexander Andrew Bruce a morte testatoris. It is, I consider, the settled law of Scotland that a destination to heirs is quite as good a conditional institution as one in favour of a named person, whether a relative or a stranger; and will, as a rule, be suspensive of vesting. If the question were open, there would be ample room for argument upon both sides, as is sufficiently evident by the varying currents of decision in the reported cases; but I think it is not open. It is needless to review the authorities; they are adequately set out in the able minutes of debate lodged for the parties. For a long time the current was strong, though not entirely uniform,

December 21,

1918.

unuary 10, 1910.

have such power; in other words, as the minute for the second party puts it, that the testator "intended to substitute a dead man for a dead man, when an equally natural "-I should say a more natural-"interpretation of the terms of the bequest would result in the substitution of a living man." I should read the bequest as importing a deliberate suspension of vesting until the liferentrix's death, in order to protect, till that period arrived, the right of succession of the "heir in heritage" then in existence.

I do not think there is anything in the decided cases which should prevent me from construing the testator's words in what I consider to be their natural and ordinary sense; and the opinions of Lord Watson in Bowman's Trs., and of Lord Kyllachy, concurred in by Lords Adam and Kinnear, in Thompson's Trs., seem to me to lend support to that construction. In Marshall v. King (1888, 16 R. 40) Lord President Inglis observed "if the term of vesting is not the date of the death of the testator, it is difficult to find any other period of vesting except the period of distribution, if we except some special cases where the testator has either expressly or by implication assigned a term of vesting other than the period of distribution. Such cases have occurred, but where no other period is suggested, the term of vesting is either (1) the death of the testator, or (2) the period of distribution." I do not think that any of the authorities cited in the minute of debate for the third parties satisfies the onus which lies upon them of shewing that the present is one of those "special cases" referred to in the above quotation.

The third parties found strongly upon a well-known dictum of Lord President Inglis in Haldane's Trs. (1881, 9 R. 269 at p. 280) that "a man's heir-at-law in heritage is the person whom the law designates as such at the time of his death, and he can never have any other." These words are indubitably true; but they must not be divorced from their context. The Lord President was dealing with a destination to the testator's "own nearest heirs in moveables whomsoever," which he considered to mean her heirs in mobilibus ab intestata, subject to certain rights of liferent, and also to defeasance in the event of contingencies which did not occur. It is clear that, as regards a man's own succession ab intestato, he can only have one heir in heritage, viz. the person who, at his death, holds that character. That fact took an important place in Haldane's case, and in cases where, as in resulting intestacy and the like, it has been necessary to establish the rights of a man's heirs ab intestato, vesting at his death, though not emerging, it may be, until a much later period. All this I endeavoured to make clear in the whole Court case of Anderson's Trs. (1917 S.C. 321). But I thought then, and think now, that

Trs. v. Bruce. December 21,

1918.

similar considerations do not arise when one WHOLE deals, not with the testator's own heirs, but COURT. with those of a legatee who are called in a Wylie's destination as conditional institutes, upon his failure, to take independently in their own right. In the case of a man's own heirs it would require very special words to overcome the presumption that they are to be sought for as at his own death and at no other period; such express words, for example, as were used by the testator in Cockburn's Trs. (1864, 2 M. 1185), or such clear implication as was found in Baillie's Trs. (1910 S.C. 891). But in a destination such as we have here, the question must always be one of intention, to be ascertained from the language employed, whether the heirs of a legatee, called as conditional institutes, and whose right is not one of succession to him, are the legatee's heirs at his death, or at some other period; and the destination must be read just as if it were in favour, not of persons described as so-and-so's heirs, but of a named third party. It stands to reason, and the cases illustrate, that in this sense a man may have one heir at his death and another at some later period; the question is, At what date did the testator intend the heir to be looked for whom he called as an independent conditional institute to the legatee? Familiar instances of what I mean may be found in Thompson's Trs. (1900, 2 F. 470), Maxwell (1864, 3 M. 318), and Stodart's Trs. (1870, 8 M. 667), in each of which cases it was held that the "heirs" of a legatee were to be ascertained at a period later than his own death.

The third parties cite a large number of English cases, culminating in the judgment of the House of Lords in Martin v. Holgate (1866, 1 E. & I. App. 175). I do not think that these cases have any feasible application or useful analogy here. Martin v. Holgate is, of course, a case of high authority, and it has been lately considered on various occasions in Scotland, when it has been sometimes followed and sometimes distinguished. These cases are referred to in the minutes of debate, with the exception of the most recent one of Dixon's Trs. (1918 S.C. 90). I there described Martin v. Holgate, with the concurrence of the Lord Justice Clerk and Lord Sands, as a case "where the House of Lords had to consider a destination in favour of certain of the testator's nephews and nieces, and of their issue; and decided, upon a construction of the instrument before them, that the gift to the issue was original, not substitutional; and therefore the fact that the gift to the parents was contingent did not affect the nature of the gift to the issue, which was an independent bequest." In Campbell's Trs. (1915 S.C. 100) Lord Cullen said (at p. 110) of Martin v. Holgate, "it was held that the contingency of survivance of the widow, which was expressly attached to the gift to the parents, could not be read into the gift to their issue, which was an independent

COURT.

WHOLE bequest"; and Lord Mackenzie (at p. 107) said, "Here, as in Martin v. Holgate, it appears to me Wylie's it is not the duty of the Court to introduce a Bruce clause of survivorship which is not expressed." I am unable to see that Martin v. Holgate, or 1918. cases like it, advance the argument for the third parties.

December 21,

These parties also cite a number of cases in which decisions have been reached in favour of an intermediate period of vesting, where there was a gift over to survivors, and the class of such survivors had been reduced to one person. I do not think it necessary to analyse these cases in detail. Newton v. Thomson (1849, 11 D. 452) contains obiter dicta by two distinguished judges in opposing senses. In Lindsay's Trs. (1885, 12 R. 964) the First Division held, upon a construction of the deed before them, that survivance of the widow was not intended to be a condition of vesting in the sons; and that, one son having died without issue, the estate vested in the other, though he also predeceased the liferentrix. One may observe (1) that the alternative contention would have resulted in intestacy; (2) that it may be doubted, as Mr Candlish Henderson points out (Law of Vesting, pp. 87, 88), whether the decision in Lindsay's case can stand consistently with the later doctrine of Bowman's Trs.; and (3) that Lord Shand observed that the right of the surviving son was truly defeasible, if he had had issue alive at his mother's death. Then as to Lord Davey's dictum at the conclusion of his opinion in Bowman's Trs., I must admit that it appears to be against the view I am disposed to take of this case, while Lord Watson's opinion seems to favour it. Lord Davey's remark, however, appears to have been purely obiter, by way of illustration, and his Lordship goes on to state (what I respectfully accept) that "the substitution of one dead person for another . . . . is a construction to be avoided." Gardiner's Trs. v. Hamblin (1900, 2 F. 679) was a complicated case; one of the three judges (Lord Adam) who heard it dissented; and the decision was in favour of vesting, subject to defeasance. I do not desire to comment further on the cases cited by the third parties. For, even assuming that there may be cases where a gift over has been made to survivors, and the class of survivors having in course of time been reduced to a single individual, that person may-there being no ulterior destination of any sort-acquire a vested right to the fee, though he predeceases to liferenter, that does not, in my judgment, by any means solve the matter in favour of the third parties. The question must always remain as to the testator's intention: whether, on the one hand, he intended that the gift over should take effect independently of survivance of the liferenter; or, on the other hand, that vesting should be postponed until the liferenter's death, until which period the ascertainment of the

This

ultimate beneficiary was not to happen. question must be solved upon the construction of the particular deed under consideration in each case; and here I desire to associate myself with the general observations contained in the sixth paragraph of the Lord Justice-Clerk's opinion. I have already stated the reasons which lead me to think that this testator's intention was in accordance with the latter of the two alternatives above figured. I think he intended vesting to be postponed till the liferenter's death, in order, as the second party's minute puts it, "to protect the rights of the person called to receive payment when that payment fell to be made, namely, the heir in heritage as at that date.”

Lord Salvesen.-Apart from authority, the intention of the testator-which it is our primary duty to give effect to in construing his testamentary writings-appears to me reasonably clear. I think he did not intend the bequest of the land, or of the money which was to go with the land, to vest until the expiry of the liferent. The heir of the legatee whom he selected as his substitute was not the person who would have naturally taken under the operation of the laws of intestacy, but the heir in heritage; and the gift itself is contained in a direction to dispone and pay on the death of the liferentrix. I, therefore, find no difficulty in answering the first question in law in the negative.

I understand, however, that the consulted judges have been asked for their opinions in this case on the question whether the dicta of Lords Watson and Davey in Bowman's case are to be held as overruling the long series_of authorities which culminated in Hay's Trs. There was, at first, a reluctance on the part of our Courts so to hold, but I agree with all your Lordships that the dicta in question, although not necessary to the decision of Bowman's case, are to be regarded as authoritative opinions, and have displaced the former rule in favour of what I consider the more natural interpretation. This new rule, as I understand it, falls only to be applied in cases where there is no evidence of a contrary intention on the part of the testator.

With reference to the decision in the case of Marshall's Trs., to which I was a party, it may be right or wrong on the special terms of the bequest which the Court was there called upon to construe, but is not in the least inconsistent with the rule laid down by Lords Watson and Davey. Whether the words there used, "her heirs and successors whomsoever," and "her heirs and representatives," were to be read as equivalent to "her heirs or assignees," as I thought, is a matter on which opinions may differ. But I do not find that that question arises for decision here; and I am not at all