With regard to the claim of the third and fourth parties founded on the doctrine of accretion, I am of opinion that the principle of the case of Paxton , 13 R. 1191, applies, and that in point of fact this is a stronger case for not applying the doctrine of accretion than Paxton's . In Paxton's case there was a more homogeneous class consisting of brothers and sisters of the testator; here, on the other hand, the legatees consist of a mother and her children,
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With regard to the second ground on which the fourth parties found their claim to Mary Hastie M'Alpine's share, namely, that it vested in her a morte testatoris , and that they are now entitled to it as her next-of-kin along with her father in the proportions fixed by the Intestate Moveable Succession Act 1855, I am of opinion that on this ground also the claim is not well founded. The deed itself expressly provides that the provisions of residue in favour of the nieces and nephews of the testator should not vest until they respectively attain the age of 25, or in the case of daughters respectively attain the said age or be married, and even with regard to issue of nephews and nieces of the testator this somewhat remarkable provision is made—“And I provide and declare that in case any of said children shall predecease me or die before his or her share of residue becomes vested, leaving lawful issue alive at the period for vesting, such issue shall be entitled, and that equally amongst them if more than one, to the share or respective shares which his her or their parent would have taken if alive, and the same shall become payable and transferable to them at the first term of Whitsunday or Martinmas after such share or shares would have become payable to their parent or parents; and providing and declaring that it shall be in the power of my trustees, if they see fit, to apply the free proceeds or income of the presumptive share of any child or lawful issue foresaid, or so much thereof as my trustees may consider proper, towards his or her maintenance, education, or advancement in life.” From this last clause it appears that supposing one of the nephews of the testator had married at twenty and had left a child, yet if that child had died before his father, if alive, would have attained twenty-five, he would not take what is called in the clause just quoted his “presumptive share.” I think, accordingly, that the testator intended that there should be no vesting of their shares in any of his nephews and nieces till they had attained the age of twenty-five, or in the case of daughters had been married before that age.
It is suggested, however, that the above declaration as to the date of vesting was only intended to protect the interests of issue, but looking to the clause I have quoted I do not think this can be successfully maintained.
But it is said that this declaration is not to be given effect to because it appears from the original words of gift in the deed that in point or law and on a sound construction of the deed the shares of residue vested a morte testatoris subject to defeasance. I cannot assent to this argument. The trustees are directed to hold the free residue and remainder of the truster's estate, and to apply the same for behoof of his sister and her children or such of them as shall be alive at his death in “manner following.” And when we come to the “manner following” we find in gremio of the directions to his trustees this declaration about the postponement of vesting. Now when there is in a deed a clear declaration as to the period of vesting, and all that can be put against that is a doubtful inference from certain other expressions in the deed, I think the plain words of the deed must be preferred, unless it is clear that by adopting that course the true intention of the testator would be defeated, which I do not think can be said in the present case. Had it not been for the direct declaration above quoted as to the period of vesting I think that this case would have fallen within the rule of Snell's Trustees , 4 R. 709, but here again I hold that the clearly expressed intention of the testator must prevail over an artificial though useful rule of construction, the introduction of which can only be defended in cases where, unless it is applied, the intentions of the truster cannot be given due effect to.
I therefore am of opinion that the first question should be answered in the affirmative as regards its first alternative, and in the negative as regards its second alternative, and that the second and third questions should be answered in the negative.
Lord Justice-Clerk —Knowing that there was a difference of opinion in the Court as to the proper decision to be given in this case I have considered it the more anxiously, but have in the end come to be of opinion that the view taken by the majority of your Lordships is that which should prevail. Agreeing as I do with what Lord Stormonth Darling has said upon the question of gift to a class I add nothing upon that matter. As regards the question of intestacy, I am entirely in sympathy with the view that where a testator seems to indicate in his will an intention to deal with his whole estate, that intention must be give effect to wherever it is possible to do so consistent with the provisions of the will itself. But, on the other hand, the Court must not seek to make a will effectual to the uttermost according to a supposed intention where no intention has been so expressed in detail as to be reasonably—or rather indeed necessarily—taken from the words used. In this case I find no such declaration of intention which must
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The Court answered the first question in the affirmative, the second question in the negative, and the third question also in the negative.
Counsel for the First and Fourth Parties— Craigie, K.C.— Cochran Partick. Agents— W. & W. Finlay, W.S.
Counsel for the Second Party— Kippen. Agents— Wishart & Sanderson, W.S.
Counsel for the Third Party— Bartholomew. Agent— Robert Cunningham, S.S.C.