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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Halliday and Others v. M'Callum [1869] ScotLR 7_60 (5 November 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0060.html
Cite as: [1869] SLR 7_60, [1869] ScotLR 7_60
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SCOTTISH_SLR_Court_of_Session
Page: 60↓
Court of Session Inner House First Division.
v.
Facts:
B. conveyed his estate to his son under burden of £500, to be equally divided amongst the children of his daughter C., and payable six months after her death, to those at least who had then attained majority. He further declared if C. should die “without leaving any living child” the provision was to go to his son. C.'s children predeceased her; but the one who died last left issue. Held the money vested at C.'s death, and her grandchildren were entitled to it under the conditio si sine liberis decesserit.
By disposition dated 11th February 1825, the late Hugh Stewart, Esq., of Gategill, conveyed to, his son, Alexander James Stewart, his lands of Gategill and others. He reserved to himself a liferent of the estate, and burdened it with an annuity of £40 to his daughter, Mrs Welsh, “and farther, with and under the burden of the payment of a provision of £500 sterling, to be equally divided among the children of my said daughter forth of the said lands and others, and to be payable to them respectively at the end of six months after the death of my said daughter, or at least to so many of them as shall then have attained to the years of majority, and to the others as soon afterwards as they shall attain to that age, with the legal interest of their respective shares from the time of the death of my said daughter, the interest of the shares belonging to such of the said children as shall not then have attained to the age of majority being in the meantime to be applied towards their support and maintenance till they severally attain to that age.” In reference to this provision he thereafter declared “that if my said daughter shall die without leaving any living child, then the said provision shall fall and belong to the said Alexander James Stewart and his heirs and assignees.”
These burdens he created real burdens on the land; and in its subsequent transmission they were duly kept up. Alexander James Stewart became bankrupt, and his estate was transferred to a trustee for his creditors. One of his creditors was Mr Kellie M'Callum, father of the second party in the case, and it was agreed that Mr Cruden, who purchased the estate from the trustee, should retain £500 of the price, to be paid to the children of Mrs Welsh, if she left any; and, if she left none, to Mr M'Callum, as in right of Mr Alexander James Stewart. It was further stipulated that the interest should be paid to Mr M'Callum till Mrs Welsh's death.
Mrs Welsh had two children, both of whom predeceased her; the elder without issue in 1847; and the second in 1849 leaving three children—the first parties in the case. On Mrs Welsh's death on the 10th January 1869, the present owner of Gategill brought an action of multiplepoinding to have it determined who was in right of the £500. The money was consigned in bank, as ordained; and the special case was presented by the Hallidays and Mr M'Callum to have the question settled.
Fraser and Scott, for the Hallidays, argued— This is a testamentary settlement by Mr Stewart of his estate under the burden of a provision to his daughter's children. The provision came in place of the annuity, and must be held to have vested a morte testatoris. If so, Mrs Halliday took her brother's share as his heir. Even if the provision vested at the death of Mrs Welsh, it is settled law that the children of a deceased parent are entitled to take the parent's share under the conditio si sine liberis decesserit. This applies equally well in the case of grandchildren, where the testator is in loco parentis. The only cases against it are cases of descendents of collaterals. Authorities— Wallace, M. App. “Clause,” No. 6; Thomson's Trustees v. Robb, 10th July 1851; Hewat v. Grant, 22d Nov. 1867; Rattray's Trustees v. Rattray, 21st Feb. 1868.
Solicitor-General and Lees, for Mr M'Callum, replied—This is a disposition of a special estate, not of the whole estate and means. The provision is a burden on the son, not money given over. He is made a debtor; and, therefore, the conditio should not apply. The provision could not vest till Mrs Welsh's death. The words of Mr Stewart's disposition shew he diet not intend a conditional institution of the children. Mr M'Callum's right is just that of Mr A. J. Stewart. The substitute is not a stranger therefore, but Mr Stewart's own son. The words “leaving no living child” shew he had no intention to burden his son for greatgrandchildren. The position of grandchildren is not that of children. The Intestate Succession Act recognizes a difference. The deed is carefully drawn; and effect must be given to its terms. The substitution of A. J. Stewart is, in effect, according to the Halliday's contention, mere surplusage, for the destination would be the same though
Page: 61↓
it were not there. The terms of the deed require survival and majority in order that the children may take. They did not survive. The conditio does not apply in favour of grandchildren. It does not apply where there is a destination over, even if there is a clause of survivorship. In the cases of Wallace and Christie there was no substitution. Nor are they well received decisions. At least their principle should not be extended. Authorities — Omey; M. 6340; Gordon. M. 6343; Wishart, M. 2310; Rhind's Trustees v. Leith, 5th Dec. 1866; Cockburn's Trustees v. Dundas, 10th June 1864; Wright v. Ogilvie, 9th July 1840; Young v. Robertson, 11th Feb. 1862. (H.L.) M'Laren on Trusts, § 1253. At advising—
The first question appended to the special case, raises, as I understand it, whether those children are expressly called to take under their grandfather's deed, whether, being grandchildren, they can take as included under the designation “children?” This question, I think, must be answered in the negative.
But there are two other grounds on which the Hallidays claim. First of all, they say the provision vested in their parent and in the other child of Mrs Welsh, Hugh Stewart Welsh, during the lifetime of these parties, and they claim it now as in right of their mother and uncle. Their other contention is that, supposing the fund not to have vested in the children of Mrs Welsh during her life, they are yet entitled to take it under the conditio si sine liberis.
I do not think the provision vested in their mother and uncle during the lifetime of their grandmother, Mrs Welsh. The case might have raised a question of considerable difficulty had it not been for the declaration which I have quoted. No doubt the provision is to be divided among her children—to be payable six months after her death—and to bear interest from her death, and she is authorised to appoint guardians to apply the interest during the minority of any child, but it is declared that if she should die “without leaving any living child” the provision should fall. With that declaration before us it is impossible to entertain the notion that the provision vested during her lifetime. The condition, as clearly and expressly stated, indisputably means that although she should have had a child, if it do not survive her it shall not prevent Alexander James Stewart and his heirs and asignees from taking the provision.
The third question raises a difficult point. But on that question I have an opinion favourable to the Hallidays' claim. I see nothing to prevent the application of the principle si sine liberis here. It is said that this is not an ordinary trust-settlement, but I cannot see any rule or reason for the non-application of the principle in the case of such a deed as we have before us. The conditio si sine liberis is simply a provision that in a destination to children, if the children die before succeeding, and leave issue, such issue shall be entitled to take. I do not see that the case of a trust-settlement is more favourable to the application of the principle than the case of such a testamentary conveyance as this. If this had been a deed inter vivos it would have been different; but as far as I can see this is as much a settlement of Hugh Stewart's affairs as if it were a trust-disposition and settlement, and its effect is to settle the estate on the granter's son, subject to a real burden in favour of the daughter and her children. The words of the declaration “without leaving a living child” do not exclude the effect of the conditio. This is just one of the cases where the law adjects it. I am not in favour of extending the condition—too much inclination has occasionally been shown to do so—but its application here does not involve any extension, but is simply allowing to it its legitimate effect.
I consider the deed now in question to be, in substance and legal character, a deed of family
Page: 62↓
I consider the provision of £500, made in favour of Mrs Welsh's children, to have not vested till Mrs Welsh's death, and, according to the terms of the deed, to have vested in the children who then survived. I rest this opinion mainly on these three facts—(1) That the right given is simply a share in a division which is not to be made till that date. (2) That whilst the term of payment is six months after Mrs Welsh's death (or the majority of those not then major), interest is payable from the date of Mrs Welsh's death. (3) That the deed declares “that if my said daughter shall die without leaving any living child, then the said provision shall belong to the said Alexander James Stewart and his heirs and asignees.” It is clearly, I think, implied in this declaration that survivance of their mother, Mrs Welsh, is a condition of any child taking, which is just in other words to say that until Mrs Welsh's death no right vested.
In point of fact, both Mrs Welsh's children predeceased her: but one of them, Mrs Halliday, left lawful issue, the claimants John Halliday and his two sisters, who survived their grandmother, Mrs Welsh, and still survive.
I am of opinion that these claimants are entitled to the provision of £500, exactly as their mother, Mrs Halliday, would have been had she survived Mrs Welsh, and were now in the held as sole claimant. I think they are bo entitled by application of the equitable principle, generally known by the name of the conditio si sine liberis, though, looking to its original application, that phrase does not always accurately express the principle. In a deed like this, in which a father makes a provision for his direct descendants, I think the law infers (nothing to the contrary appearing) that the right given to a child is given to the children of that child, in the event of the child's own predecease. In the parental contemplation, the term “child” is considered to embrace the child's children, as coming into the child's own place, and entitled to obtain exactly what the child would have himself obtained. Or, to put the position in more technical language, the children of the child who is institute, are conditional institutes, in the implication of the law, to the provision which, if in existence, the child would be entitled to take.
I am therefore of opinion, that the Hallidays', as surviving Mrs Welsh, are entitled to take what their mother, if surviving, would have taken; and should prevail in the present competition.
Agent for the Hallidays— W. S. Stuart, S.S.C.
Agents for Mr M'Callum—Gillespie & Bell, W.S.