Scottish Court of Session Decisions

This was a competition betwixt Ardrian William Keith Falconer, Esq., only son of the late Hon. William Keith, and the marriage-contract trustees of Major Lockwood and his wife, the late Dora Keith Falconer, only daughter of the said Hon. William Keith, in regard to a sum of £6000, referred to in the following clause in the trust-disposition and settlement executed by the Ladies Maria and Catherine Keith, on 7th October 1839; — “In the third place, we direct and appoint our said trustees to hold the sum of £6000 of the trust means and estate hereby conveyed for the purpose of paying over, from the first term of Whitsunday or Martinmas after the death of the longest liver of us, to the Lady Mary Keith during her life, the yearly interest which they may draw for the said sum of £6000; and at the first term of Whitsunday or Martinmas after the death of the said Lady Mary Keith, the said sum of £6000 shall be paid over by our said trustees to the Hon. William Keith (their nephew), whom failing, to his children equally between them, share and share alike.”

The last survivor of the two trusters died on 24th August 1851. Lady Mary Keith, the liferentrix of the sum in question, survived till 5th July 1864. Of the beneficiaries, the Hon. William Keith predeceased the two ladies, the trusters, and admittedly no right vested in him to the sum in question. His two children, Mrs Lockwood and Mr Ardrian Keith Falconer, survived both the

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trusters, but Mrs Lockwood died before Lady Mary Keith, the liferentrix.

The question was whether the right to the fee of this sum of £6000 vested in these children anterior to the death of the liferentrix, or only vested on that event? The first proposition was maintained by Mrs Lockwood's marriage-contract trustees, who claim the one-half of the sum in her room. The last was maintained by Mr Adrian Keith Falconer, who claims the whole of the sum.

The Lord Ordinary (Kinloch) found the claimants, Lockwood's trustees, entitled to one-half of the provision. He observed in his note:—

“The Lord Ordinary has had no difficulty in finding that the right had vested in the children, and of course the one-half in Mrs Lockwood, on the death of the last of the two ladies, and that the vesting was not suspended till the death of the liferentrix. And, first, let it be considered how the case would have stood had the only beneficiary been the Hon. William Keith, and he had survived the last of the two ladies, but died before the liferentrix. The Lord Ordinary thinks it very clear that the right of fee must have been held vested in Mr Keith on the death of the last of the two ladies, and that vesting could not have been held suspended till the death of the liferentrix, to the effect (which would have in that case occurred) of creating intestacy as to this sum, if Mr Keith predeceased that date. The case would have been the simple one of liferent and fee co-existing. There was a mere postponement of payment, in order that in the meanwhile Lady Mary Keith's liferent might be satisfied. The fee, and the full disposal of the fee, would have belonged all the time to Mr Keith. If this be so, it appears to the Lord Ordinary that the only effect of Mr Keith's dying before the survivor of the two ladies, was to prevent any right vesting in him, and to vest the right in his two children as conditional institutes, to the same effect in all respects as in the case of Mr Keith himself. The two children simply came into his room. His children were called as a class, with the right of sharing equally in the fund. The right is given to them absolutely. There is no destination over in favour of any other person, so as to suspend vesting till it was seen who should survive. As between the children themselves, there is no declaration that the right should go to those of them who should be alive at the death of the liferentrix. There is no benefit of survivorship. The right is alike and equally vested in all. The case is again just that of liferent and fee existing simultaneously—the liferent in Lady Mary Keith, the fee in Mr Keith's children; the postponement of payment as before, being just for the purpose of securing the liferent. The full disposal of the fee belonged in the meantime to the children, just as it would have done to Mr Keith, their father, had he survived and taken. This being, as appears to the Lord Ordinary, the substance of the case in the matter of vesting, he is not affected by the terms in which the settlement is expressed; which bear that the trustees shall pay the interest to Lady Mary Keith, and after her death shall pay the capital to the children of Mr Keith—expressions from which it was inferred that no right arose till the time of payment had arrived. When the question of vesting is attended with doubt, the form of the expression may be material. When, as the Lord Ordinary thinks in the case here, the matter is in substance not doubtful, the mere form of the expression will go but very little way towards affecting the conclusion.

“ W. P.”

Mr Adrian Keith Falconer reclaimed.