Scottish Court of Session Decisions

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Cite as: [1872] ScotLR 9_459, [1872] SLR 9_459

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SCOTTISH_SLR_Court_of_Session

Page: 459↓

Court of Session Inner House Second Division.

Saturday, May 18. 1872.

9 SLR 459

Special Case—Ferrier

v.

Ferrier.

Subject_1Legacy
Subject_2Vesting
Subject_3Term of Payment.
Facts:

In a mortis causa trust-disposition and settlement a testator directed his trustees to retain from his estate the sum of £500, and pay over the free income thereof to his sister during her lifetime; and as soon as convenient after her death, or after his own death in case of his sister predeceasing him, to pay the £500 to his nephew; but if his nephew should die before the “period of payment,” the said sum was to be disposed of otherwise. The testator died, having been predeceased by his sister. Held that the vesting of the legacy took place on the death of the testator, and was not to be suspended until the trustees should find it “convenient” to pay it.

Headnote:

This was a Special Case between Mrs Louisa Spence or Ferrier, widow, executrix, and universal legatee of William Ferrier, of the first part, and John Ferrier and James Ferrier, of the second part.

Alexander Black, bookseller in Brechin, died on 12th December, 1870, leaving a trust disposition and settlement, the 3rd purpose of which was to the following effect:—“My trustees shall retain from my estate the sum of £500 sterling, and pay over the free income or annual proceeds thereof half-yearly to or for behoof of my sister, Mrs Ann Black or Ferrier, during her lifetime, and after the death of my said sister, or after my own death in the event of the said Ann Black or Ferrier predeceasing me, that my said trustees shall, as soon thereafter as my trustees shall find it convenient, pay the capital of said sum of £500 to my nephew, the said William Ferrier, whom failing, to the lawful issue of his body equally; and in the event of the said William Ferrier dying before the period of payment of said sum of £500 without leaving lawful issue, my trustees shall pay over £200 thereof to the widow of the said William Ferrier, and the balance of said sum of £500 shall be divided equally between John and James Ferrier, brothers of the said William Ferrier.” The moveable estate of the testator at his death was sufficient for the payment of his debts, and to meet all the
Page: 460↓
provisions in his trust-deed. Mrs Black or Ferrier, the testator's sister, predeceased him; her son, William Ferrier, survived him, but died on 18th May 1871, leaving a will constituting his wife sole executrix and universal legatee. The other nephews of the testator, John and James Ferrier, claimed the £300 left to them by the clause above quoted, on the ground that William had not survived the “period of payment.” William Ferrier's widow, on the other hand, claimed the whole of the £500.

The questions submitted for the opinion of the Court were:—

“1. Whether the legacy of £500 vested in the said William Ferrier, and so was conveyed by his will to his widow, the first party?” or

“2. Whether the said William Ferrier died before the period of payment of the said legacy of £500, and the direction took effect to pay £200 thereof to his widow, and the remaining £300 to the said John Ferrier and James Ferrier?”

Lee, for Mrs Ferrier, contended that the legacy vested in William Ferrier a morte testatoris, and that there was nothing to show that the testator contemplated a different “period of payment,” except in the event of his being survived by his sister, Mrs Black, in which case the legacy would have vested on her death.

M'Laren, for John and James Ferrier, answered that the “period of payment” meant the time when it was convenient for the trustees to pay the money, and they were actually ready to pay it; and that William Ferrier must be held to have died before that period had arrived. He relied chiefly on the cases of Howat's Trustees, 1869, 8 Macph. 337, 7 Scot. Law Rep. 157; Thorburn v. Thorburn, 1836, 14 S. 485; and Wilkie v. Wilkie, 1837, 15 S. 430, where vesting was held to have been suspended until the period of “receiving payment,” or that of actual division had arrived.

At advising—

Judgment:

Lord Justice-Clerk—I do not suppose your Lordships are disposed to question what has been laid down in the authorities quoted to us, but the present case stands quite distinct from these. In these cases there was a period of receipt of payment, or of actual distribution of the testator's funds, entirely distinct from the period of the testator's death. In this case there were two alternative periods of payment, viz., the death of the testator, or the death of his sister, Mrs Black, in case she should survive him; but there is nothing to indicate the testator's intention that the legacy should not vest until some period subsequent to one of these events. The third purpose of the deed begins by directing the trustees to retain the £500, on the assumption that they actually had it in their hands. The remainder of the estate sufficed for payment of debts and the other legacies, and there was no reason why the trustees should delay to pay the £500. It was to be paid as soon as convenient after the death of the testator. I can, therefore, see no reason for holding that the period of payment was intended in any way to be postponed, or for departing from the ordinary rule that a legacy vests a morte testatoris.

Lord Cowan.—I concur in the view taken by your Lordship. I think the period of payment means the death either of the testator or of his sister. By the words “as soon thereafter as my trustees shall find it convenient,” the testator merely expressed his desire that they should not be put to any inconvenience; and there is nothing to show that he intended to make the period of vesting dependent on their discretion.

Lord Benholme—It appears to me not to be the tendency of courts of law to hold that the vesting of rights should depend on mere accident or caprice. Unless there be some special and distinct reason that vesting should be suspended, the ordinary rule must be followed, and the legacy held to vest on the death of the testator. I am, therefore, of the same opinion as your Lordships.

Lord Neaves concurred.

The Court accordingly answered the first question in the affirmative.

Solicitors: Agents— M'Kenzie & Kermack, W.S., and Henry Buchan, S.S.C.

1872