Scottish Court of Session Decisions

Inglis, who died in 1860, provided by his settlement as follows” Thirdly, whereas it is my purpose in my own lifetime, and as soon as I can accomplish it, to invest in heritable or other security, in the name of certain trustees, a sum of £1600, in trust, for behoof of my grandson and heir-at-law James Inglis, son of my said deceased son George Inglis, in liferent, for his liferent use only, and of the parties after-mentioned in fee: And whereas it may happen that I shall fail to accomplish the said investment during my lifetime, then, and in that case only, I direct my trustees to lay out and invest on such heritable or other security as they shall consider good and sufficient a sum of £1600 sterling, for behoof of the said James Inglis, my grandson, in liferent, for his liferent use allenarly, and after his death, the fee of the said sum of £1600, to be divided into two equal parts or shares, one whereof shall be payable to or amongst the lawful heirs of the said James Inglis, the life-renter,” &c.

James Inglis, the liferenter, died in 1867, leaving no issue. His widow claimed a part of the fund as

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one of the heirs in mobilibus of her deceased husband.

The Lord Ordinary ( Barcaple) found “that, according to a sound construction of the deed of directions executed by the truster, James Inglis, on 22d May 1860, the direction therein contained that one-half of the sum of £1600 thereby directed to be invested for behoof of the truster's grandson, James Inglis junior, for his liferent use allenarly, should be divided into two equal parts or shares, one whereof should be payable to or amongst the lawful heirs of the said James Inglis, the liferenter, constituted a bequest or destination of the fee of said half of said sum to the proper heirs in mobilibus of the said James Inglis junior, and did not confer any right to any portion thereof upon his widow in the event, which has happened, of his dying survived by a widow.”

“ Note.—The primary question is as to the intention of the truster in the destination of the fee of half of the sum of £1600, which he directed to be invested for behoof of his grandson in liferent allenarly, and the fee ‘to be divided into two equal parts or shares, one whereof shall be payable to or amongst the lawful heirs of the said James Inglis, the liferenter.’ It is contended for the widow of the liferenter that the truster's intention was merely to tie up the fund so as to prevent it being squandered or dilapidated by his grandson leaving it at his death to go to the parties who would have taken it if it had been moveable property vested in his person, including his widow, if he should leave one. The Lord Ordinary thinks that that construction is excluded by the terms of the provision giving the fund to the lawful heirs of the liferenter. That is, no doubt, a very flexible expression, and one requiring construction in the present case. The Lord Ordinary has no doubt that it must be held to apply to heirs in mobilibus, and not to heirs at law in heritage, the direction to invest in heritable or other security being merely for the purpose of securing a fund for payment of the liferfent, and the £1600 being directed to be divided and paid by the trustees to the parties to whom the fee was destined. But the widow is not, in any sense, one of the lawful heirs, and the Lord Ordinary does not think she can be held to be included by that description of the parties to whom the fee is bequeathed. The truster may possibly have had the intention for which the widow contends, but there is no evidence of that to be found in the deed, according to any construction which can be legitimately put upon its terms.”

Mrs Inglis reclaimed.

Scott and Brand for reclaimer.

Lord Advocate ( Moncreiff) and Rettie for respondents.

Gebbie for trustees.

At advising—