Scottish Court of Session Decisions

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SCOTTISH_Court_of_Session_Shaw

Page: 374↓

016SS0374

Forbes

v.

Luckie
No. 95.

Court of Session

1st Division

Jan. 26 1838

James Forbes and Others (Mrs Josephina Booth's Trustees), Claimants.— Counsel:
Moir. Mrs Helen Luckie, or Downie, and Others, Claimants.— Counsel:
M'Neill— Monro.

Ld. Fullerton. B., Lord Corehouse, Lord President, Lord Gillies, Lord Mackenzie.

Subject_Testament — Vesting — Succession — Provision to Wives and Children.— Headnote:

1. A testator left a daughter, Mrs B (whose legitimacy was challenged), and two grandchildren, who died in minority, and predeceased their mother: the testator bequeathed his estate to executors, directing them to pay the interest to his daughter, Mrs B, “and after the death of the said Mrs B, I appoint my executors to pay the whole remainder and residue of my estate to the whole children of the said Mrs B, to be lawfully procreated of her body, share and share alike:”—Held that the fee of the said whole remainder of the estate had vested in the grandchildren, and was effectually carried by their settlements, though the term of payment was postponed until after the death of the testator's daughter, and the grandchildren predeceased that period, and though the provision was conceived not in favour of individuals nominatim, but of a class of persons.—2. Circumstances in which the Court held, in regard to the fee of a special sum of £4000, part of a testator's estate, that although he had made provisions respecting it, which, if taken by themselves, would have made it very doubtful whether it vested in the testator's grandchildren, unless one of them should reach 21 years of age, which none of them did; yet taking the whole settlement together, it was clearly the intention of the testator that the fee of the said £4000 should vest in the grandchildren, and that it had vested accordingly.

Facts:

The late James Booth, residing in Aberdeen, had one child, Josephina, married to Ensign William Launie. He executed a trust-settlement, by which he appointed Duncan Davidson, and others, his sole executors, and conveyed to them his whole personal estate and effects, and appointed them to dispose thereof as follows:—“That is to say, in the first place, to pay out thereof all my just and lawful debts and funeral expenses, and the haill remainder and residue of my said estate I appoint my said executors, or the acceptors or survivors of them, to lend out on such security as they shall think proper, and to pay the interest thereof to Josephina Booth, now Mrs Josephina Launie, spouse to Ensign William Launie of the 26th Regiment of Foot, and my daughter, till her eldest child now in life, by the said William Launie, shall be 21 years of age, at which time my said executors, or acceptor, or survivor of them, shall set apart £4000 sterling of my funds, which shall be equally divided among the children then in life, lawfully procreated of the body of the said Josephina Booth, share and share alike, on their respectively attaining the age of 21 years complete; and after setting apart the foresaid sum of £4000 sterling, my said executors, or the acceptor or survivor of them, shall continue to pay the interest of the balance to the said Josephina Booth during all the days of her lifetime, which bequests in favour of the said Josephina Booth are made by me, exclusive of the jus mariti and administration of the said William Launie, her husband.” The will declared that the receipt of Mrs Booth or Launie alone should be effectual for “the interest of my funds hereby conveyed;” and then proceeded—“And after the death of the said Josephina Booth, now Launie, I appoint my said executors, or the acceptor or survivor of them, to pay the whole remainder and residue of my estate to the whole children of the said Josephina Booth, to be lawfully procreated of her body, share and share alike.” The settlement was executed in 1811, at which period Mrs Booth or Launie and her husband had two children, James and Maria. They never had any other children. The testator died soon after executing the settlement. Maria Launie died in minority, after having, at the age of 14, executed a settlement conveying her whole means and estate to executors to pay the same to her mother, in the event of her brother predeceasing her mother. James Launie died, also in minority, having, at the age of 14, executed a settlement in favour of his mother. Mrs Booth or Launie died in 1836, leaving a trust-settlement in favour of James Forbes and others, directing them to apply the funds to educational and charitable purposes. Between these trustees, on the one hand, and Mrs Helen Luckie or Downie, a widow, and others, the next of kin of James Booth, on the other hand, a competition arose for the funds which had been left by James Booth. His executors brought a multiplepoinding, in which these parties claimed.

The legitimacy of Mrs Booth or Launie was disputed, and her trustees, who claimed in her right, though they maintained her to be legitimate, rested their claim, in the first instance, upon the allegation, that the fee of James Booth's funds had vested under his settlement in his grandchildren, and had been effectually conveyed by their settlements to their mother. In support of this they pleaded, that, immediately on the death of James Booth, the right of his grandchildren, James Launie and Maria Launie, in the fee of his funds, was a vested right, which they could effectually bequeath by testament, as they had done. The only parties provided for by James Booth's settlement were his daughter, to whom he bequeathed the interest of his general estate, and his grandchildren, to whom he bequeathed the fee. There was no ulterior substitution in favour of any party whatever, so as to prevent the fee from instantly vesting in the grandchildren; and this distinguished the present from any previous case in which it had been held that the fee did not vest. And wherever there was no contingency requiring to be first purified, the fee of the capital was not prevented from vesting, by the mere circumstance that the term of paying it over was postponed until the termination of a liferent. Nor did it affect the question, that the fee was provided to a class of persons, the testator's grandchildren, and not to individuals nominatim. ¹

In regard to the special sum of £4000, which was directed to be set apart when the eldest of the children alive at the date of the testament should reach 21, there was nothing to prevent it from vesting. Every provision respecting it was meant to increase the right of the children in it, and not to weaken such right. If, therefore, the fee of the rest of the funds was vested in them, the fee of £4000 should, a fortiori, be held to have vested in the survivor of them; and it would be a plain infringement on the will and intention of the testator if it were to be held otherwise. And, in general, as the claim of the next of kin was founded on the assumption that James Booth, notwithstanding his settlement, had left himself intestate in the actual circumstances which had occurred, that was a presumption so highly improbable, that it could not be received unless there was almost a necessity for rejecting every other.

The next of kin of James Booth pleaded, (1.) That, although intestacy was an unfavourable plea, yet it was not unnatural, or unprobable, that a testator should only mean the fee of his estate to vest in his grandchildren if they survived their mother, and should not give them any power to dispose of it unless they so survived; but should prefer, in that case, that his own next of kin should succeed. And this was the true import of the settlement. In regard to the special sum of £4000, that could not be said to have vested in either James or Maria Launie, because it was specially provided that, when the eldest child alive at the date of the settlement reached 21, that sum should “be equally divided among the children then in life, lawfully procreated of the body of the said Josephina Booth, share and share alike, on their respectively attaining the age of 21 years complete.” The interest of a child in this sum was not only fluctuating and contingent on the number of children, but the period for its vesting had never arrived, as no child reached the age of 21. As to this sum, therefore, James Booth died intestate, and it must fall to his next of kin. And in regard to the residue of the estate, the sole right given to the children, procreated or to be procreated, was under a direction to the executors of James Booth, to pay the said residue to the children “after the death of the said Josephina Booth or Launie.” No right was here given, even prospectively, to any individual named, but merely to a certain class of persons; and before the event of Mrs Booth or Launie's death, that whole class was extinct, so that their interest had

_________________ Footnote _________________

¹ Wallace, Jan. 28, 1807; Marchbanks, Feb. 18, 1836 (ante, XIV. 521); Sievwright, Jan. 27, 1824 (ante, II. 643; or new ed. 543).

entirely lapsed. Accordingly, there were several analogous decisions in which it was fixed that an interest, so conceived, had not vested. ¹

The Lord Ordinary “preferred the claimants, the trustees of the late 3 Josephina Booth or Launie, on their claim and interest produced, to the fund in medio, and decerned in the preference, and for payment to them accordingly; but found no expenses due.” ^*

Mrs Helen Luckie or Downie and others reclaimed.

Lord Corehouse.—I incline to make a distinction, in this case, between the special sum of £4000, and the general residue of the estate of James Booth. I think that the general residue was vested in his grandchildren, James and Maria Launie, but it rather appears to me that the special sum of £4000 was not so vested in them or either of them. I hold the general rule to be clear, that where a testator leaves funds to one person in liferent, and to another in fee, the fee will not be prevented from immediately vesting, by the mere circumstance that the period of payment to the fiar is postponed until after the death of the liferenter. This rule was recently exemplified strongly in a case which has not been referred to by the parties, the case of Maxwell and others, Thomson Mure's trustees. ¹ In that case a testator directed his trustees to pay the annual proceeds of his estate and effects to his three unmarried sisters, and the survivor of them; and after the death of the survivor, and paying certain legacies, he directed the residue to be paid to three individuals specified. That bequest as to the residue was afterwards revoked, and it was directed that the residue should be paid to those who would have been

_________________ Footnote _________________

¹ Mowbray, July 9, 1834 (ante, XII. 910).

^* “ Note—The question here is, whether or not the residue of the estate of James Booth, vested in the children of Josephina Booth or Launie, so as to admit of being carried by their testaments to their mother, who survived them. There seems to be no reported case exactly the same with the present; but considering the combined result of the various analogous cases, the Lord Ordinary thinks they do afford an authority for answering the question in the affirmative.

“It has been determined in the cases of Wallace, 28th January, 1807; Macdonald v. Russel, 26th February, 1824; Aikman v. Brockie, &c., 18th February, 1836, that, under a trust, created, inter alia, for securing an annuity, words nearly identical with those used here, in regard to the disposal of the capital on the death of the annuitant, do import a right of fee, vesting from the death of the truster.

“It is true that those were cases of special legacies to particular individuals, and that here the residue is made payable at the death of the annuitant to a class, viz. the whole children to be procreated of the body of Josephina Booth or Launie. But looking at the case of Sievwright against Dallas, 27th January, 1824, involving circumstances much more unfavourable than the present to the vesting of the right, the Lord Ordinary sees no reason for denying effect here to words, although relating to children to be procreated, which would confessedly have created a vested right in an individual named; and besides, the case here is divested of the difficulties which occurred in the case of Wallace and others above referred to, as here there is no substitution. The children are the only parties called by the trust, so that the effect of the opposite construction would be the intestacy of the testator, a result never to be easily presumed in the case of a settlement, clearly intended to be a general settlement of the residue, and consequently to exclude the notion of intestacy.”

¹ May 25, 1837 (ante XV., 1005)

the testator's heirs-at-law, failing any settlement. After the death of the testator, several of those heirs died before the death of the last of the persons entitled to the whole annual proceeds of the estate. But notwithstanding this, the Court held that a right in a proportional share of the residue was vested in these predeceasing heirs, and was effectually carried by their respective settlements. It was pleaded in that case, that as payment was postponed till after the death of the last liferenter, nothing had vested in those who predeceased that period. But the plea was repelled, and the Court held that a right to a proportional share of the fee, vested in each of the heirs-at-law, under the settlement, so soon as the testator died. And in that case there was interposed the machinery of a trust, which is often founded on as tending to suspend the vesting of interests whose term of payment has not arrived. In the present case, therefore, so far as regards the general residue of the estate, I do not think there is any difficulty in holding that it was vested in the two grandchildren of the testator, James and Maria Launie. The settlement of James Booth directed in these terms:—“After the death of the said Josephina Booth, now Launie, I appoint my executors to pay the whole remainder and residue of my estate to the whole children of the said Josephina Booth, to be lawfully procreated of her body, share and share alike.” I do not think that the fee of the residue was prevented from vesting in these children, either by the circumstance that the term of paying to each child his respective share, was postponed until after the death of the liferentrix who survived the testator; or, by the circumstance, that a trust, by executors, was interposed for carrying into effect the intentions of the testator; or, finally, by the circumstance that the bequest of the residue was conceived in favour of a class of persons, and not in favour of certain individuals nomination. In so far, therefore, as relates to the general residue of the estate, excepting the £4000, I have no doubt that the interlocutor is right.

But the question respecting the vesting of the £4000 stands in a different situation, and is attended with more difficulty. That sum was not simply left in liferent to Mrs Booth or Launie, and in fee to her children. The settlement directed the interest of the whole estate to be paid to Mrs Booth or Launie, “till her eldest child now in life, by the said William Launie, shall be twenty-one years of age, at which time my said executors or acceptor or survivor of them, shall set apart £4000 sterling of my funds, which shall be equally divided among the children then in life, lawfully procreated of the body of the said Josephina Booth, share and share alike, on their respectively attaining the age of twenty-one years complete.” The interest of the balance was thereafter directed to be paid to Mrs Booth or Launie. Now, in regard to the right of the legatees under this bequest, it is suspended on an uncertain contingency. The sum is not merely made payable at a period which is future, but which is altogether contingent. The term of payment was to arrive when the “eldest child, now in life, shall he twenty-one years of age;” and the sum was to be “equally divided among the children then in life.” None of the children reached the age of twenty-one years, and I conceive that their interests under this bequest had never vested in them. Suppose that one only of the two children had died, and had left a settlement, while the other survived and reached the age of twenty-one. It appears to me to be clear that the survivor would have taken the whole of the £4000, to the exclusion of the testament of the predeceasing child, just because the interest of such predeceasing child had not vested in it. And as both children died before the age of twenty-one, I apprehend that no right to the £4000 had vested in either of them.

As the general rule is quite fixed that a legacy, which is suspended on a contingency, does not vest, I think this sum of £4000 was never vested in the testator's grandchildren. The whole sum was provided to either child, if one alone survived the age of twenty-one, and the whole sum was contingent on the event of one of the children reaching that age. None of them did so, and, before doing so, there could be no vesting. Wherever a right is altogether contingent, it cannot vest. The period for determining whether it vested or not was the death of the testator. If it did not vest then, nothing subsequently occurred which could make it vest. And I apprehend that the sum did not vest then, as it was absolutely uncertain whether the one or the other should survive the age of twenty-one, and take the legacy; and if so, that sum will fall to the claimants, the next of kin of James Booth. In regard to that part of the Lord Ordinary's interlocutor, therefore, which holds that the right to this sum had vested, I incline, though not without considerable hesitation, to dissent from the interlocutor. In other respects I think it should be adhered to.

Lord President.—I am of the same opinion, in so far as regards the general residue of the estate. I think it vested in the testator's grandchildren, and was effectually conveyed by their settlements; and the case of Thomson Mure's trustees, is quite in point, as to the general residue. But I feel more difficulty respecting the sum of £4000, and rather incline to think that the interlocutor of the Lord Ordinary should be adhered to in that respect also. If we hold otherwise, we must assume that the testator, although executing a settlement as to the general residue of his estate, had died intestate as to a considerable portion of that estate; an assumption so highly improbable, that the Court cannot adopt it unless the circumstances are such as to leave them no alternative. On the whole, therefore, though I feel much hesitation respecting that sum of £4000, from the peculiar position in which it was left by the testator, I think the interlocutor of the Lord Ordinary should be adhered to.

Lord Gillies.—I think the case is clear as to the general residue of the testator's estate, but I feel some doubt respecting the special sum of £4000. If I looked merely at that part of the settlement which directs it to be paid when the eldest child, living at the date of the settlement, should reach the age of twenty-one years, and that it should be equally divided among all the children of Mrs Booth or Launie, then in life, on their reaching the age of twenty-one, I might be unable to see that, in the circumstances, the fee of that sum had vested in the children or any of them. But when I look at the whole testament together, as I am bound to do, and reflect on the liberal interpretation which ought to be given to wills, so as to give effect to the true intention of the testator, I rather think that the fee of that sum had also vested. The testator's object was to give the interest of his whole estate to Mrs Booth or Launie, during the minority of her children, but to enlarge the right of the children, on reaching majority, in regard to a sum of £4000, out of that estate. And as it is clear that the fee of the general residue vested in the children, it would be odd, if they had a smaller interest in respect to the £4000, in virtue of provisions which were certainly intended solely to enlarge their interest in that sum. At the conclusion of the settlement the testator says, “After the death of the said Josephina Booth, now Launie, I appoint my said executors, or the acceptor or survivor of them, to pay the whole remainder and residue of my estate to the whole children of the said Josephina Booth, to be lawfully procreated of her body, share and share alike.” The fee of the whole estate falling under this appointment, vested in the children of Mrs Booth or Launie; and, giving these words a liberal interpretation, I think that, in the circumstances, the £4000 fell under it. The interest of the whole estate, which was to be payable to Mrs Booth or Launie, till the eldest child reached twenty-one years, continued payable to her, in my opinion, although all the children died before that age. And I have no doubt that it was the intention of the testator to affect the whole fee, as well as the whole liferent, of his estate by his testament, and that we should be construing the settlement, in a manner contrary to his intention, if we did not hold that the fee of the £4000 had vested in his grandchildren as well as the fee of the rest of his estate.

Lord Mackenzie.—I think the case is not free from doubt, but I incline to form the same opinion with that which has been just expressed. The cardinal guide for us is the intention of the testator, if we can truly discover it. And, in a question of intention, it appears to me to be incomparably more probable that the testator intended the £4000 to go to the representatives or assignees of his grandchildren, than to pass, in virtue of intestacy, to his own next of kin. He declared that “after the death of the said Josephina Booth, now Launie, I appoint my said executors, or the acceptor or survivor of them, to pay the whole remainder and residue of my estate to the whole children of the said Josephina Booth, to be lawfully procreated of her body, share and share alike.” These words are broad enough, I think, to make it certain that, at the death of his daughter, Mrs Booth or Launie, the testator meant his whole estate to go to her children. Suppose that one of her two children had survived her for a year, but died before attaining majority, would the Court hold that the whole succession had not vested in that child, but that its representatives or assignees were liable to lose £4000 of it, unless the child reached the age of twenty-one years? If so, it would be a very odd result indeed, as the whole provisions respecting the £4000 were inserted for the purpose of increasing the right of the children in that sum, to something greater than it was in the residue of the estate. As to the residue it is clear that the fee of the whole vested in the children as soon as the testator died. And I cannot enter into the view that the fee of the £4000 was prevented from equally vesting, because the testator had inserted some special provisions, the object of all which was to favour the children and increase their right in this very sum of £4000. It appears to me to be extremely difficult for the Court to adopt such a view as that. On the whole I am satisfied that the intention of the testator was to provide the interest of his whole estate to his daughter, subject to deduction of the interest of £4000 in favour of her children, in certain events which did not happen; and that it was his intention to provide the fee of his whole estate to her children, and that the fee vested in them, under the broad words used in the settlement.

The Court accordingly adhered on the merits, but altered as to expenses, and directed the expenses of both parties to be paid out of the trust-funds.

Solicitors: J. P. Bertham, W.S.— Scott and Balderstone, W.S.—Agents.

SS 16 SS 374 1838