Scottish Court of Session Decisions

This was-a Special Case submitted for the opinion and judgment of the Court by the following parties, viz.:— First, George Gray, banker, Dalkeith, the sole surviving testamentary trustee and executor of the late James Bowes, corn merchant in Dalkeith; and the said George Gray and James Bowes, draper, Huddersfield, the surviving trustees acting under trust-disposition and assignation by the testamentary trustees of the said late James Bowes and others, dated 19th and 25th September, and 2d and 5th October 1850: Second, Mrs Mary Smeall or Bowes, widow of the late John Bowes, sometime agent for the Clydesdale Banking Company at Dalkeith; Magdalene Mushet Bowes, grocer in Dalkeith; Alexander Yellowlees, merchant in Galashiels; and John Gray, corn merchant at Elginhaugh, the trustees and executors acting under holograph will and settlement executed by the said John Bowes, dated 1st May 1860; and third, Mrs Magdalene Cleghorn or Waddell, widow of the deceased John Waddell, merchant, Dalkeith, and only child of the late Mrs Isabella Bowes or Cleghorn, who was a daughter of the said deceased James Bowes.

The late James Bowes died in 1840, leaving a trust-disposition and settlement, by which he disponed and assigned his whole heritable and moveable estate to certain trustees, in trust, for certain purposes. The truster by said deed, inter alia,— “fourthly, appointed that the free income of the residue of his estate should be paid to his widow (during viduity), under the burdens, provisions and conditions therein mentioned, until his youngest child alive at the time should attain majority, subject to an obligation to aliment such of the children as should live in family with her; and, upon that event, that she should have the liferent of his furniture, and an annuity equal to one-third of the free income of the residue (during her viduity); but in the event of her marrying again, that she should receive an annuity therefrom of£20 per annum. Fifthly, so soon as his youngest child alive at the time should have attained majority, he appointed his trustees, in virtue of the powers therein contained, to sell and dispose of, either by public roup or private bargain, his whole heritable and moveable means and estate thereby generally and particularly conveyed; and, after payment of his debts, sick-bed and funeral charges, the expenses attending the execution of said trust, and the legacies, provisions and others therein contained, and on investing a capital sum sufficient for payment of the said annuity provided for his said spouse in the events foresaid, on proper heritable security, payable to her in liferent, and to the said trustees in fee, in trust, and for behoof of his children therein named, in terms of his said trust-disposition and settlement, he directed his said trustees to divide and make payment of the free residue of his said estate and effects, heritable and moveable, to and in favour of his eleven children therein named, including his daughter Isabella Bowes, afterwards Cleghorn (the mother of the party hereto of the third part), and any other lawful child or children that might be born to him living at the time of his decease, or born thereafter, and that equally between or among them, share and share alike, and at and upon the terms, ages and events therein specified, viz., that the shares or provisions to his said sons of the residue of his said estate should become vested interests on their attaining the age of twenty-one years complete, and the shares or provisions of said residue to his said daughters should become vested interests on their being married or attaining the age of twenty-one years complete, whichever event should first happen, and should become payable to him, her or them respectively at the first term of Whitsunday or Martinmas that should happen after his youngest child alive at the time should have attained the age of twenty-one years complete: Declaring that in case any one or more of his said children should die before the foresaid share or respective shares or provisions provided for him, her or them, in manner therein and before specified, should have vested or become payable as therein and above mentioned, then and in such case not only the original share or shares of the child or children so dying, but the share or shares accrescing to him, her or them in virtue of said clause, should appertain and accresce to the survivors or survivor of his said children, and be divided equally amongst them, if there should he more than one, share and share alike, and the same should vest and become payable at and upon the same terms, ages, or events as his, her, or their original shares were thereby directed to become payable as aforesaid: Providing, nevertheless, that in case any one or more of such children as should die as aforesaid should have left lawful issue of his, her, or their bodies, then, and in that case such issue should be entitled to the share or shares which their deceased parent or parents would have been entitled to if alive, and the same should become payable to such issue at and upon the same terms, ages, and events as his, her, or their deceased parent or parents would have been entitled to. Further, it was, by said trust-disposition and settlement, specially provided and declared that, in the event of any or all of the truster's said daughters contracting a marriage or marriages which should appear to his said trustees inexpedient or unsuitable, then his said trustees were thereby expressly authorised and empowered not to pay over to the daughter or daughters contracting said marriage the share or shares of his said means and estate provided for them as aforesaid, but to invest and lay out the same upon proper heritable security, due and payable to such daughter or daughters in liferent

Page: 429↓

for their liferent use allenarly, excluding expressly the jus mariti and curatorial powers of their husbands, with whose debts and deeds their said liferent should noways be affected, and to the child or children to be lawfully procreated of the bodies of his said daughters respectively, who should share the capitals of the shares or provisions of their respective mothers equally among them in fee; and, failing lawful issue of the bodies of his said daughters, the said several shares or provisions should revert and be divided equally amongst his other children and their heirs and successors per stirpes respectively.”

The truster was survived by his widow and eleven children, including a daughter named Isabella, who had married in 1837, after she had attained majority, to James Cleghorn. There was no marriage settlement, and she died in 1844. In 1846 her husband, Cleghorn, assigned the share in the residue of the estate of James Bowes which had belonged to his wife to certain parties. The youngest child attained majority in 1849. In 1850 the testamentary trustees paid£120 to these assignees in part payment of the Mrs Clegliorn's share in the residue; and, by assignation dated March 1850, the assignees sold their right to the remainder of the share to Mr John Bowes for£60.

At this time, in 1850, the only child of Mrs Cleghorn, viz., Mrs Magdalene Cleghorn, now Waddell, was only eight years of age, and she neither knew nor consented to the execution of these deeds; and she now contended in this Special Case that, as the only child of her mother, she was entitled to the share of the residue of the estate of James Bowes which belonged to her mother, in respect that that share did not vest in her mother until the youngest sister attained majority in 1849, and consequently, that the assignation of it by her father, James Cleghorn, in 1846, was inept. It was claimed, on the other hand, by the trustees and executors of the late John Bowes, in virtue of the before-mentioned assignation, dated March 1850, in his favour.

The questions submitted were—

“I. Did the said share of the residue of the said deceased James Bowes' trust-estate vest indefeasibly in the said Mrs Isabella Bowes or Cleghorn during her lifetime, so as to be assignable by her said husband in her right after her death?

“II. Regard being had to the terms of the said trust-disposition and settlement of the said deceased James Bowes, and the facts and circumstances before set forth, were his testamentary trustees, upon the majority of his youngest child, entitled to pay over any, and, if any, what, portion of the said share of residue to the assignees, voluntary or judicial, of the said James Cleghorn?

“Were they bound to hold account for and pay the same to and for behoof of the party hereto of the third part?

“In the event of the Court pronouncing judgment upon the foregoing queries in favour of the party of the third part, the parties crave that judgment be pronounced in her favour, decerning the parties of the first part to make payment to her of the said balance in their hands, with the proportional part of the free income of the said residue effeiring thereto from and since the said 15th August 1869, reserving to her any further claim under the minute of agreement between the parties above set forth.”

Horn and Deas contended that the share did not vest until the majority of the youngest child, and quoted Croom's Trustees, Nov. 30, 1859, 22 D.

M'Laren and Balfour in answer.

The Court were unanimously of opinion that the first and second questions should be answered in the affirmative, and the first and second alternative questions in the negative.