Scottish Court of Session Decisions

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Cite as: [1872] SLR 9_591, [1872] ScotLR 9_591

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SCOTTISH_SLR_Court_of_Session

Page: 591↓

Court of Session Inner House Second Division.

Friday, July 5. 1872.

9 SLR 591

Special Case—Mackintosh and Others.

Subject_Parent and Child.
Facts:

Trustees, who were directed to invest a fund for a mother in liferent and children in fee, to be paid to the children on their majority, are bound, after the mother's death, to pay out of the fund to the father, while the children are in minority, a reasonable sum for their maintenance and education.

Subject_1Legacy
Subject_2Vesting.

Facts:

A legacy, which was directed to be paid on the marriage or death of a certain person, vests at the death of the testator, the term of payment being postponed till one or other event should happen.

A legacy directed to be paid on the marriage of a certain person does not vest till the marriage take place, as that event may never happen.

Headnote:

This Special Case was submitted by Æneas William Mackintosh, Esq. of Raigmore, and Charles Stewart, Esq. of Dalcrombie, executors of the late Mrs May Clark or Boileau, of the first part; Madeleine Wood, and others, children of the late Mrs Isabella Anne or Annie Boileau or Wood, daughter of Mrs May Clark or Boileau, and the said Edward Wood, as administrator-in-law for his said children, of the second part; and Stewart Clark, executor-nominate of the late Charles Elliot Boileau, son of the said Mrs May Clark or Boileau, of the third part.

Mrs May Clark or Boileau died on 8th October 1856, leaving a last will and testament and two relative codicils. The will contaiued the following clause:—“I ordain and appoint my said executors to invest the free residue of my said personal estate and executry either in the best heritable or personal security, and pay over the annual interests, dividends, or proceeds thereof to my daughter, Isabella Ann or Annie Boileau, in liferent during all the days of her lifetime, or until the period of her marriage, whichever of these events shall first happen; and in the event of the marriage of the said Isabella Ann or Annie Boileau, I ordain and appoint my said executors, immediately thereafter, to make payment to Thomas Theophilus and Charles Elliot Boileau, my sons, the sums of £600 sterling each; and the residue and remainder of my said personal estate and executry I ordain them to settle, by such deeds and documents as they may think necessary and requisite at the time, on the said Isabella Ann or Annie Boileau, in liferent during all the days of her lifetime, but for her liferent use only, exclusive of the jus mariti of any husband whom she may marry, and not affectable by his debts or deeds, or by the diligence of his creditors, in any way or manner, and to the child or children of the said Isabella Ann or Annie Boileau, in fee, equally and share alike, on their respectively reaching the years of majority or being married,
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and the respective heirs of their bodies per stirpes et non per capita, in the event of any of said children predeceasing their mother and leaving lawful issue, that is to say, the children of the deceased parent taking equally among them the succession that would have opened to said parent had he or she lived to the period of division of the sums hereby bequeathed to them in fee.” The first codicil contained the following clause:—“Having come into the possession of more money than I calculated upon by the will of Miss Maddie Macpherson, I now bequeath the additional sum of £400 to each of my two sons, Thos. Theos, Boileau, and Charles Elliot Boileau. This additional sum not to be paid to them but in the event of the marriage of my daughter, Isa, Ann or Annie Boileau, or her death.” The second codicil contains this clause:—“It is my intention that the provisions contained in the foregoing codicil, as to take effect in favour of my sons in the event of the death of my daughter, refer only to her death without leaving issue.” She was survived by her three children, Thomas Theophilus Boileau, Charles Elliot Boileau, and Isabella Anne or Annie Boileau. The said Thomas Theophilus Boileau is still alive. Charles Boileau died, leaving a last will and testament under which the party of the third part was named his executor. Isabella Anne or Annie Boileau was married on or about 17th August 1858 to Edward Wood. She died on 22d April 1871, leaving children, the parties hereto of the second part. The said children are all in pupillarity. They all live in family with their father, who is their legal guardian, and whose domicile is in England.

The legacies of £600 and £400 bequeathed under the said last will and testament and codicils to the said Thomas Theophilus Boileau were paid to him on the marriage of his sister; but the legacies of similar amount left to Charles Boileau have not been paid. No deed of settlement or other deed was or has yet been executed by the parties of the first part for the purpose of settling the residue of the estate upon the said Mrs Wood and her said children.

The following were the questions for the opinion and judgment of the Court:—

“1. Whether the shares of residue falling to the children of the said Mrs Isabella Anne or Annie Boileau or Wood under the said last will and testament and codicils of the said Mrs May Clark or Boileau have now vested in the said children, parties hereto of the second part?

2. Whether the parties of the first part are bound or entitled to apply the annual income arising from the said residue, or such part of said income as maybe necessary, towards the maintenance and education of the said children, (parties hereto of the second part), during their respective pupillarities and minorities?

3. In the event of the preceding question being answered in the affirmative, whether the said first parties are entitled or bound to pay over the said income, or such part thereof as may be applicable to said purpose, to the said Edward Wood, as the legal guardian of his said children?

4. Whether the said legacies of £600 and £400, bequeathed as aforesaid to the said Charles Elliot Boileau, vested in him prior to his death, and now belong to the third party as his executor; or whether the said legacies, or either of them, lapsed, and now form part of the residue of the estate of the said Mrs May Clark or Boileau?”

Solicitor-General ( Clark) and Mackintosh for the first and third parties.

Marshall and Rutherfurd for the second parties.

At advising—

Judgment:

Lord Benholme—The question in this case arises out of the settlement of Mrs Boileau. She was survived by three children, viz., Theophilus, Charles, and Isabella Ann. Isabella married and left children.

Now, there are two sets of questions presented in this case—first, regarding the special legacies; and, secondly, regarding the residue. As regards the special legacies of £600 each to the two sons, the bequest is contained in the testament, and is in these terms—( reads ut supra). Here there is a distinct leaving of a bequest of £600 each to the two sons. Then there is a second legacy by a codicil in the following terms:—“Having come into the possession of more money than I calculated upon by the will of Miss Maddie Macpherson, I now bequeath the additional sum of four hundred pounds (£400) to each of my two sons, Thos. Theos. Boileau, and Charles Elliot Boileau. This additional sum not to be paid to them but in the event of the marriage of my daughter, Isa. Ann or Annie Boileau, or her death.”

Regarding the two legacies to Theophilus there can be no doubt, for he survived the two events specified.

It was not so with Charles. He died before the marriage, and consequently before the death of the daughter. The question then arises, Is the first legacy to be paid? The marriage of the sister not having in fact taken place during the lifetime of Charles, can we hold that that legacy ever vested? The ordinary rule (founded on the civil law) is, that it did not so vest, and I think that this rule applies to the circumstances here.

But this does not go to settle the question regarding the second legacy of £400. It was left on a different footing, namely, “on the marriage or death of Annie.”— (reads) Here there is a contingency besides marriage. The legacy is not left dependent on that uncertain event. It was left dependent on a certain event, namely death. It is true the marriage might come before the death, but one or other of these events must happen. Therefore, I think Charles' heirs were entitled to his share. The rule derived from the civil law is this—that when a legacy is made dependent on a certain event, and the legatee does not survive that event, the legacy is merely postponed. The certainty of an event happening some time renders the vesting absolute, postponing the time of payment. This rule was well illustrated in the case of Home v. Home (Jan. 28, 1807, Hume's Rep., p. 530). The case was this—A legacy was left to a party, half on attaining majority or marriage; the other half on the death of A. B. The lady died before majority or marriage. It was held that there was a good claim by her next of kin for the half depending upon the certain event, namely A. B.'s death. As regarded the other half—depending upon majority or marriage, which never arrived— the legacy was held to have lapsed. The remarks made by Lord Braxfield appear to me sound, and to rule the present case. “One-half of it clearly lapsed, being left pendent on the condition of majority or marriage, which never arrived….

Page: 593↓

As to the other half, I think it vested in the child, though suspended in point of payment till the mother's death, which is a dies certus, that will happen, though uncertain when.” This points out the capital distinction between events which must, and events which may, happen. It is clear that if the legatee does not survive the uncertain event, he does not take. But if he does not survive a certain event that does not interfere with the vesting.

As regards the vesting of the residue of the estate:—The terms of the document are these— (reads ut supra). Here then is a liferent to the daughter so long as she remains unmarried. Then in the event of her marriage, there is this legacy to the sons— (reads). The lady died leaving children, and the questions are these—First, “Whether the shares of the residue falling to the children of the said Mrs Isabella Anne or Annie Boileau or Wood under the said last will and testament and codicils of the said Mrs May Clark or Boileau have now vested in the said children, parties hereto of the second part?” This, I think, must be answered affirmatively. The second question is as follows—

“Whether the parties of the first part are bound or entitled to apply the annual income arising from the said residue, or such part of said income as may be necessary, towards the maintenance and education of the said children, parties hereto of the second part, during their respective pupillarities and minorities?” This question must also be answered in the affirmative. The question cannot be considered without reference to the fact that these children have a legal guardian. They are English children, and their father is their legal guardian. In regard to the third question, I entertain no doubt. The executors are bound to pay over such part for the maintenance of the said children.

Lord Cowan—1.—In the first point submitted for the consideration of the Court, I am of opinion that the shares of residue falling to the children of Mrs Wood have vested in them, subject, as regards the extent of their interest, to be diminished should other children be born entitled to participate in the bequest. The direction to the executors is to “invest” the free residue of the estate (in their own names), and pay over the annual proceeds for the liferent use of the daughter while unmarried, and in the event of her marriage (which happened), to “settle” the amount by such deeds as might be necessary on the daughter, in liferent, for her liferent use only, and to her “child or children in fee, equally and share alike, on their respectively reaching the years of majority, or being married,” the issue of predeceasers taking “the succession that would have opened to their parent had he or she lived to the period of division of the sums hereby bequeathed to them in fee.” This is a direct disposition of the fee to the children when born, as a class, so that, while the fee until their existence would be in the parent fiduciarily, the beneficial interest vested in them when they were born. There is no ulterior destination of the fee failing the children, assuming the daughter to be married and to have children of the marriage, so that, upon her death leaving children, which is the case that has occurred, those children are the only parties having interest in the residue of this estate under the deed. This being so, I cannot view the words “on their respectively reaching the years of majority or being married” as a condition failing which, on the predecease of all the children, there would be intestacy. I think any such result would be inconsistent with the intention of the maker of this deed, and it appears to me that the words above recited must be held to have exclusive regard to the period of payment of their respective shares. Meanwhile, as a class, the existing children, in the circumstances which have occurred, are vested with right to the residue of this estate. And there can be no difficulty in carrying into effect the intention of the testatrix, seeing that the executors, in terms of the deed, have invested in their own names the funds, and which are held by them, consequently, for behoof of and to all effects and purposes in trust for these beneficiaries.

2. and 3.—I concur in the views stated by Lord Benholme.

4.—As the testator's son Charles predeceased the event of his sister's marriage, I am of opinion that the legacy of £600 must be held to have fallen. The bequest is “in the event of the marriage” of his sister, the executors are appointed “immediately thereafter to make payment” to each of the testator's two sons Thomas and Charles of the sum of £600. I do not think it doubtful that the bequest in its terms was conditional, and that the death of Charles, one of the legatees, before the condition was purified, had the effect of preventing any right vesting in him that can now be claimed by his executors.

The other sum of £400 stands in a different position, inasmuch as by the terms of the codicil which bestows it there is, first, an unconditional bequest of the amount which by its terms would have vested the legacy in the legatee but for the condition which follows; and, in the second place, the condition attached to payment of the legacy is not merely the event of the sister's marriage, but also of her death. This last event having been the sole condition attached to the legacy, would not have prevented it vesting in the legatee at the testatrix's death. And I cannot think that the alternative condition should affect this result. As one of the two events could not have prevented the vesting of the legacy a morte testatoris, subject to the liferent of the daughter, I hold the better view to take of the intention of the testatrix in annexing the alternative condition, was to give right to the legatee to immediate payment on that condition being purified, but not to suspend the vesting.

The Lord Justice-Clerk and Lord Neaves concurred.

The Court pronounced this interlocutor:—“Finds, 1st, That the shares of the residue falling to the children of Mrs Isabella Anne or Annie Boileau or Wood, under the last will and testament and codicil of Mrs May Clark or Boileau, have now vested in the children, parties hereto of the second part. 2d and 3d, That the first parties are bound to pay over the annual income arising from the said residue to the said Edward Wood, as the legal guardian of his said children, towards the maintenance and education of the children, parties hereto of the second part, during their respective pupillarities and minorities, or such part thereof as may be necessary for such purpose. 4th, That the legacy of £600, bequeathed to Charles Elliot Boileau, did not vest in him prior to his death, but lapsed, and now forms part of the residue of the estate of the said Mrs May Clark or Boileau; and that the legacy of £400, bequeathed to Charles Elliot Boileau, did vest in him prior to his death,

Page: 594↓

and became payable on the marriage of Mrs Wood,” &c.

Solicitors: Agents for First and Third Parties— Gibson-Craig, Dalziel & Brodies, W.S.

Agents for Second Parties— Mackenzie & Black, W.S.

1872