JUDGMENT

Lord Keith Of Kinkel

[1] My Lords, the late John Patrick Wright, Writer to the Signet ("Mr Wright") died on 19th September 1917 leaving a trust disposition and settlement dated 16th September 1912. He was survived by his widow ("Mrs Wright"), by one daughter Mrs Violet Moncreiff Lockhart Wright or Callender ("Mrs Callender") and by four children born to Mrs Callender, Hyacinth, Winifred, Richard and David. The provisions of the trust disposition and settlement were complicated, and it is sufficient to say that the fee of the residue of the estate, after liferents in favour of Mrs Wright and after her death in favour of Mrs Callender, was destined to such of his grandchildren as should survive the period of distribution, together with the issue of any grandchild who might have predeceased the period of vesting, equally among them per stirpes. However, Mr Wright by the trust disposition and settlement conferred upon Mrs Wright absolute power at any time during her life to alter its purposes and provisions. Mrs Wright exercised this power by three deeds of variation of different dates, the principal effect of which as regards the residue of the estate was that certain funds were to be held for each of her grandchildren in liferent and their issue in fee with provision for accretion to the others and their issue in the event of any grandchild dying without leaving issue.

[2] Mrs Wright died on 21st December 1932 leaving a trust disposition and settlement dated 20th June 1925 the effect of which so far as material was that (a) certain specific funds and (b) the residue of the estate were to be held in liferent for the last survivor of her grandchildren and upon the death of such last survivor to be paid (a) to the surviving great-grandchildren of Mrs Wright "being children of" her granddaughters and younger grandson and (b) to surviving issue of such last surviving grandchild.

[3] Mrs Callender died in July 1953. Her son David died on 15th September 1977 survived by one son, Rupert David Dundonald Callender. Her daughter Winifred died without issue on 11th November 1982 and her son Richard, also without issue, on 24th January 1987. Hyacinth, the last surviving grandchild of Mr and Mrs Wright, died on 2nd April 1989. She was survived by three children, Anna, Hugo and Winifred born respectively on 15th September 1942, 29th February 1944, and 6th September 1946. At the time they were born Hyacinth was not married to their father, Alfred Holmes. He was then married to someone else and thus not free to marry Hyacinth. However, he later became free to marry her and did so on 6th August 1954, and she then became Mrs Holmes. At all material times the family were domiciled in England. The children were not legitimated on the date of the marriage because, by virtue of sec 1 (2) of the Legitimacy Act 1926, the legitimation provisions of sec 1 (1) did not apply to an illegitimate person whose father or mother was married to a third person when the illegitimate person was born. However, this exception was removed by sec 1 (1) of the Legitimacy Act 1959, and the three children therefore became legitimate, so far as the law of England was concerned, three months after 29th July 1959, the date of the passing of the Act. The common law of Scotland has for centuries admitted the doctrine of legitimation per subsequens matrimonium but subject to the qualification that the parents of the child should have been free to marry each other at the date of its conception. That qualification was removed, with effect from 8th June 1968, by sec 4 of the Legitimation (Scotland) Act 1968.

[4] At the time of her death Mrs Holmes was liferented in certain funds under the two trust dispositions and settlements, vesting of the fee being postponed till her death. So far as Mr Wright's trust disposition and settlement is concerned the persons entitled to the fee are the surviving "issue" of Mrs Holmes, whom failing the surviving "issue" of her brother David. Under