Curle’s Trustees v Millar and Others: HL 18 Nov 1921

A testator directed his trustees to hold the residue of his estate for his son and two daughters in equal shares for their liferent use allenarly and their issue in fee. In the event of his son or daughter or any of them dying without leaving lawful issue the trustees were directed to hold the capital of the said shares for behoof of the survivors of his son and daughters if more than one, or for the survivor if only one, in the way already provided with regard to their original shares. The testator further provided that if any of his children should predecease him leaving issue, such issue should receive the capital which would have been liferented by their parent, and that if any of his children should predecease him leaving no issue their shares should be divided equally among his surviving children and the issue of predeceasing children per stirpes. The settlement further provided-‘Failing any survivor of my said son or daughters or issue of any of them, I direct my trustees to pay over the said shares of my said son and daughters to their nearest heirs and representatives in moveables.’
The testator was survived by his three children. The son died without issue, survived by the issue of a predeceasing sister and by the other sister and her issue. Held ( rev. judgment of the First Division) that the residuary clause read as a whole showed that the word ‘survivor’ ought not to be construed in its ordinary sense, but was to be read ‘stirpitally’ ‘as meaning surviving in person or in stirps, and that accordingly the share liferented by the son did not fall exclusively to his surviving sister and her issue, but fell to be divided between the issue of his predeceasing sister on the one hand and his surviving sister and her issue on the other.

Lord Atkinson, Lord Shaw, Lord Sumner, and Lord Wrenbury
[1921] UKHL 21, 59 SLR 21
England and Wales

Wills and Probate

Updated: 19 November 2021; Ref: scu.632643