Scottish Court of Session Decisions

This was an action of declarator brought for determining the rights of parties under the settlement of the late Lieutenant-Colonel William Rattray of Downie Park, in the county of Forfar. The leading question was whether the legacies, given under the sixth purpose of said settlement, vested in the legatees a morte testatoris, or not till the death of Colonel Rattray's widow, whom he constituted liferentrix of his estate.

By Colonel Rattray's settlement he disposed of his whole estate, real and personal, except his lands of Downie Park (of which he executed a separate deed of entail), to certain parties named as trustees. He bestowed on his surviving wife the liferent of his whole estate, including the lands of Downie Park, and, by the sixth purpose, he made the following appointments with reference to the legacies now in question:—“I appoint my said trustees to make payment of the legacies following at the first term of Whitsunday or Martinmas that shall happen six months after the death of the said Mrs Janet Henrietta Rankine, my spouse, or me, in case she shall happen to survive me.” The question was whether, looking to the postponed period of payment, and reading the clause in the light of the other provisions of the deed, vesting was postponed till the period of payment, which took place a morte testatoris.

The Lord Ordinary ( Kinloch) pronounced the following interlocutor:—

“ Edinburgh, 1st June 1867.—The Lord Ordinary, having heard parties' procurators, and made avizandum, and considered the process—Finds that, according to the sound construction of the trust-disposition and settlement of the deceased Lieutenant-Colonel William Rattray, dated 9th December 1815, and codicil thereto, the legacies bestowed under the sixth purpose of the said trust-disposition did not vest till the death of Mrs Janet Henrietta Rankine or Rattray, his surviving wife; and that no right thereto now arises to the assignees, or legal representatives, of those legatees who predeceased the said date: Finds that the late Captain James Rattray, having been an accepting trustee of the deceased, and having survived the death of the widow, became thereby entitled to the legacy of £19, 19s. given to the accepting trustees by the settlement; and that the same is payable to those now claiming in his room: And appoints the cause to be enrolled, in order that judgment may be pronounced therein, in accordance with the preceding findings. W. Penney.

Note.—The leading question in the present case is, whether the legacies given under the sixth purpose of the late Colonel Rattray's settlement vested in the legatees a morte testatoris, or not till the death of his widow, whom he constituted liferentrix of his estate.

By Colonel Rattray's settlement he disponed his whole estate, real and personal, except his lands of Downie Park (of which he executed a separate deed of entail), to certain parties specifically named as trustees. These comprised Mrs Janet Henrietta Rankine, his wife, afterwards his widow, and nine gentlemen, some of whom were resident in Scotland and some in England; and the conveyance was made to these ‘as trustees, with the powers, and for the uses and purposes after mentioned, and to the survivors or survivor of them residing in Scotland for the time, who shall accept, any three of them to be a quorum, while that number of accepting trustees survive.’

Colonel Rattray, by this settlement, bestowed on his surviving wife the liferent of his whole estate, including the lands of Downie Park. He appointed various legacies to be paid, the term of payment of most of which was the term succeeding the death of his wife, if she survived him; and with regard to the residue, the following is his declaration: ‘In case there shall be any residue or reversion of the trust-funds and subjects hereinbefore conveyed, I appoint my said trustees to make over the said residue and reversion, as soon after the death of the survivor of my said wife and me as this trust can be closed, to the heir of my body, or other heir or substitute called to the succession of my tailzied lands and estate; and upon such payment the said heir shall be bound to settle the accounts of my said trustees, and to discharge them of this trust.’

The question now arises as to the legacies bestowed under the sixth purpose of the trust; and, as said above, is, Whether these vested a morte testatoris or not till the widow's death? The question is convertible with this other, Whether the testater intended a personal bequest to the parties named, provided they should survive his widow, or whether he intended the bequest to go to their assignees or legal representatives if they should die in the interval between his own death and his wife's? The question must, like all other questions of vesting under a settlement of moveables, be determined by a sound consideration of the testator's intentions, as these are expressed in the settlement.

The Lord Ordinary has come to the conclusion that the testator intended these legacies to vest at the death of his widow, and not sooner.

The first consideration to be attended to, is that the time of payment of the legacies is the death of the widow. The sixth purpose begins thus:—‘I appoint my said trustees to make payment of the legacies following at the first term of Whitsunday or Martinmas that shall happen six months after the death of the said Mrs Janet Henrietta Rankine, my spouse, or me, in case she might

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happen to survive me.’ A doubt was stirred before the Lord Ordinary as to the meaning of this clause, raised by the somewhat odd collocation of the words ‘or me,’ in the sentence. It was said that the clause must be read ‘six months after the death of Mrs Henrietta Rankine, my spouse, or after my own death, in case she shall happen to survive me;’ and that thus, in the event of the widow's survivance, it was still at the date of six months after the testator's own death that the legacies were to be paid. But this construction would make mere nonsense of the clause. It would make the legacies payable by the testator during his own lifetime, if his wife predeceased him, for that would be the meaning of ‘six months after the death of the said Mrs Janet Henrietta Rankine,’ if read absolutely and without qualification in the first part of the clause. It would also raise the absurdity of making the survivance of the wife the condition of the legacies being payable after the testator's own death. Most probable, the words ‘or me’ are a clerical error for ‘and me,’ and nothing else. But even as it is, the Lord Ordinary has no difficulty in reading the clause so as to import payment of the legacies at the testator's own death, if his wife should predecease him, and at his wife's death in the event of her survivance. The payment is made alternative, ‘after the death of the said Mrs Janet Henrietta Rankine, my spouse, or me,’ and what follows is equivalent to the statement, ‘the first event occurring, in case she shall happen to survive me.’

It is thus the starting point in the case, that in the event of the wife's survivance (which is what occurred) the legacies are not payable till her death. It is true that a mere postponement of the term of payment will not by itself infer that the legacy did not vest a morte testatoris. In the simple case, which has often occurred, of a liferent of the fund being constituted, and legacies indefinitely left to individuals named, with the term of payment declared to be the death of the liferenter, there may be no great difficulty in holding such legacies to vest at the testator's death; the right being un-limitedly given and merely the payment postponed. But the fact of a postponed period of payment may, on the other hand, be very material in determining at what period the testator intended vesting to take place. It will especially be so if the right to the legacy be not given indefinitely, but in the shape of an appointment to pay at a particular period—which may fairly be said to make the whole right centre in the appointment, so that if the appointment cannot be followed out literally by paying to the specific person named, no right shall arise. In the present case there is no indefinite bequest, such as would arise if the testator said— ‘I leave and bequeath the following legacies to the persons after named.’ The terms in which the bequest is made are:—I appoint my said trustees to make payment of the legacies following, at the first term of Whitsunday or Martinmas that shall happen six months after the death of the said Mrs Janet Henrietta, my spouse, or me, in cases he shall happen to survive me,' the specific legatees favoured being thereafter named in the deed. It is fairly contended that, under these words, the right of the legatees only arises out of the appointment, and does not come into operation till the time of execution of the appointment; and that the right must be held to have lapsed, if, by the predecease of the legatees, payment to the individuals named has become an impossibility.

The principle on which, in the general case, a legacy is held to lapse if the legatee has predeceased the testator, may be fairly held applicable to such a case as this. It is the personal character of the legacy which is held to bring about this result. Hence if the legacy is left not merely to the individual named, but to him and his heirs, the legacy is held not to lapse, but to pass to these latter as conditional institutes. The reason is, that by the addition of these words the legacy is deprived of the exclusively personal character which otherwise belongs to it. It is reasonably contended in the present case, in regard to all the legacies under the sixth purpose which are given to specific individuals without mention of heirs or children, that the personal character of every such legacy prevents its passing to any legatee who predeceased the testator's widow, as much as, in the ordinary case, such a consequence is operated by the legatee's predecease of the testator himself.

The next material consideration arises out of the fact that, in regard to some of the legacies bestowed under this sixth purpose, it is indisputable, and was not disputed, that the time of vesting was the death of the widow and not sooner. This is manifestly the case with the very first legacy bestowed, which is to the daughters of the said Dr Charles Rattray, the sum of £900 sterling, to be divided among them equally, share and share alike; and failing any of them without leaving children, the share of those dying to go to the survivors or survivor. It was admitted on both sides that the clause of survivorship here inserted had the effect of suspending the vesting till the widow's death, as it could not be known till then who the survivors would be. The same inference was drawn, though more doubtfully, from others of the legacies, which were given to children failing the parents; as to which, it was said that the children were conditional institutes, in whose favour vesting was alike suspended. It was said in reply that it has been more than once decided that legacies may be given in the same clause of a settlement, of which some vest a morte testatoris, and some not till the death of the liferenter. The Lord Ordinary cannot doubt the competency of so wording a settlement as to make different legacies vest at different periods. But whether this result arises or not will depend on the terms employed. It is not naturally to be presumed, that where all the legacies arise out of one general appointment to pay six months after the liferenter's death, more than one period of vesting was intended by the testator. The natural presumption, on the contrary, is, that one general appointment, applicable to all, gives one period of vesting equally so applicable.

There are other inferences pointing in the same direction, to be derived from the terms in which some of these legacies are expressed. Several of them, as already said, are legacies given to children failing their parents, that is, to the children generally mentioned of persons specifically named. It cannot be reasonably maintained that the parties favoured were the children in existence at the time of the testator's death; and that all were excluded who were born afterwards before the death of the widow. The fair presumption is, that the legacy was intended to operate in favour of all the children existing at the widow's death. But this is a consideration which is very adverse to the theory of vesting a morte testatoris. For if the legacy then vested, it vested in the children then existing. It is made to embrace all the children coming into

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existence before the widow died (which is the fair presumption as to the testator's intention), by assuming that the widow's death, and no earlier period, was the intended time of vesting.

The mode in which these legacies are expressed further shows very clearly that the testator knew how to express himself when he intended the legacies payable at his wife's death to go beyond the persons specifically named. He bestows the legacy on children, failing the parent, just because he did not intend the expression of his kindness and affection to be exclusively personal to the party named. The inference at once arises that, where no one is named but the specific legatee himself, the testator intended the personality of the legacy to apply in all its exclusiveness. He gives the legacy to children for the very purpose that, if the parent predeceased, these should claim as conditional institutes. But where, in the very same clause, none is mentioned but the legatee himself, the contrast in the form of expression speaks strongly in favour of a diversity of intention. It is reasonably held that the legatee is alone personally named, just because the testator intended that if he did not subsist to present his personal demand, the legacy should go to no one else.

A special inference was drawn at the debate from the terms of the legacies given to Elizabeth and chartotte Rattray, being ‘the sum of £50 sterling each for a ring.’ It was argued that the purpose of the bequest showed its being exclusively confined to the parties themselves. The ring was to be worn by these parties; it was not to be the subject of assignment, voluntary or legal, in favour of a number of others. Perhaps the argument is not one which can be pressed very far. But it undoubtedly corroborates the idea that the legacies were intended to be strictly personal at the time of payment; and that where the person did not exist the legacy did not exist any more.

Taking all these circumstances into view, the Lord Ordinary has arrived at the conclusion that the only sound construction of the testator's intentions is to hold that he intended his legacies to be strictly personal to the legatees, and to be only demandable where the parties favoured survived personally to demand them; and not to be payable to assignees, voluntary or legal. And this, after all, is the true point of inquiry in the so-called question of vesting. The thing to be ascertained is simply whether, on a just construction of the terms of the settlement, the testator intended the legacies to be only payable if the legatees survived the widow, and themselves were in a situation to demand them, or whether he intended them to be equally claimable by their legal representatives or voluntary disponees. When once the mind rests in the conviction that this last alternative was not intended by the testator, this is equivalent to holding that the legacies did not vest anterior to the widow's death.

It is to be added, in conclusion, that the case is not hampered with the difficulty which sometimes occurs in questions of vesting, namely, that to hold that no vesting took place will raise a case of intestacy, to which it is said the law is adverse, in much the same way as nature is said to abhor a vacuum. To hold the legacies not to have vested involves no case of intestacy in the present question. There is a residuary disponee, to whom everything falls which is not effectually bequeathed otherwise. And it is not unworthy of notice, that the residuary bequest does not itself vest till the widow's death. It is the heir of entail then in existence who takes the residue of the estate. The question is, whether he takes it subject to payment of the legacies to the legatees then in existence; or whether he must alike pay them to their legal representatives, or voluntary disponees. The Lord Ordinary is of opinion that the first branch of the alternative is that fixed by the testator.

There is a special question raised on the terms of the last legacy, which is thus expressed, ‘And lastly, to each of my accepting trust-disponees before-named, the sum of £19, 19s. sterling, for souvenir.’ The words of this clause have been pressed into the service of the legatees by the argument supposed to be supplied by them, that as the widow, who was one of the trustees, could not draw the sum in question if the legacy did not vest till she had died, this supports the position that the legacies vested a morte testatoris. This seems to the Lord Ordinary somewhat more subtle than sound. If the opposite view is correct, no one was entitled to a legacy without survivance of the widow, whether trustee or not; and first to assume the widow entitled to the legacy, and then to argue that she could not obtain her right unless on the supposition of vesting a morte, is somewhat of a petitio principii. The Lord Ordinary is disposed to think that the sound construction of this clause is to hold the widow not to be referred to at all, but only the trustees other than her.

But another point has been raised. Captain James Rattray was an accepting trustee, and survived the widow; but was then, it is admitted, permanently resident out of Scotland. It is said that he had lost all his rights of trustee, and, amongst others, his right to this legacy, under the clause quoted in the outset, which devolved the trust on ‘the survivors or survivor of them residing in Scotland for the time.’ It is not easy to construe this clause satisfactorily. But it appears to the Lord Ordinary not to be necessary to do so in order to determine the point in question. The clause provides for a case of survivorship; but it does not interfere with the original constitution of the trust, which undoubtedly vested the trust, in the first instance, in all the trustees named, whether in Scotland or out of it. Captain Rattray was admittedly an accepting trustee. The Lord Ordinary is not prepared to hold that his office came to an end by his removal out of Scotland. The clause appears to him rather to be an enabling than a disqualifying one; that is to say, rather to enable the trustees within Scotland to act without the others, than to erase those others from the trust. But be this as it may, the Lord Ordinary thinks that under the clause bestowing the legacy, it was enough to enable Captain James Rattray to demand it, first, that he was an accepting trustee; and secondly, that he survived the widow.”

The representatives of the predeceasing legatees reclaimed.