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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Dymock's Trustees and Others [1873] ScotLR 10_263 (21 February 1873)
URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0263.html
Cite as: [1873] ScotLR 10_263, [1873] SLR 10_263
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SCOTTISH_SLR_Court_of_Session
Page: 263↓
Court of Session Inner House First Division.
Facts:
A testator directed his trustees to pay to A the yearly interest or produce of the sum of £6000, and, in the event of A predeceasing her husband B, to pay the yearly produce to him,
Page: 264↓
and on the death of the survivor of them to pay the capital sum to their child or children who might be then alive. The testator also gave directions as to the disposal of the whole residue of his estate. A and her husband had two sons, one of whom predeceased both parents, and the other survived A and predeceased her husband. Held (1) that the fee of the £6000 did not vest in the two sons, or either of them, and (2) that the said sum formed part of the residue of the testator's estate.
The facts of this case were as follows:—Andrew Storie, W.S., Edinburgh, died on 10th May 1862, leaving a trust-disposition dated 19th Nov. 1856, by which he disponed all his heritable and moveable property to trustees, for the purpose inter alia of paying it over to such person or persons as he should direct by any writing subscribed by him.
Mr Storie also left a deed of directions, dated 6th August 1861, with two additions thereto, dated respectively 6th and 14th August 1861, by which he gave directions to his trustees with reference to the disposal of the means and estate conveyed to them by the said trust-disposition.
By the fourth direction contained in the said deed of directions, Mr Storie directed his trustees to pay to Elizabeth Gray or Dymock, wife of Robert Lockhart Dymock, exclusive of her husband's jus mariti and power of administration, the yearly interest or produce of the sum of £6000 of his capital stock of the Bank of Scotland, and in the event of her predeceasing her husband, to pay the said yearly produce to him during his life, and on the death of the survivor of them, Mr Storie directed the capital of said stock to be paid or transferred to their child or children who might be then alive, in such shares, if more than one, as the parents might have appointed jointly during their life, and failing such appointment by them jointly, as the survivor of them should appoint, which also failing, among the said children equally.
By the tenth direction contained in the said deed of dirctions, Mr Storie directed the residue of his estate to be divided into four equal parts, two whereof were to be paid to Mrs Penelope Ogle or Swan, under certain restrictions; one-fourth to Alexander Hill Gray, and the other fourth to the said Elizabeth Gray or Dymock, and their respective heirs.
The said Mrs Elizabeth Gray or Dymock was a niece of Mrs Storie, the wife of the said Andrew Storie, and Mrs Swan was a niece of the said Andrew Storie. Mr Storie was survived by the said Mrs Elizabeth Gray or Dymock and Robert Lockhart Dymock, and their two sons, Robert Lockhart Dymock jun., who was born on 20th October 1842, and John Gray Dymock, who was born on 14th June 1844, and who both died without issue, and also by the said Mrs Penelope Ogle or Swan and James Swan and Alexander Hill Gray. The said John Gray Dymock survived his mother, the said Mrs Elizabeth Gray or Dymock, but predeceased his father, the said Robert Lockhart Dymock, and the said Robert Lockhart Dymock jun. predeceased both his father and mother. Mrs Elizabeth Gray or Dymock died on 21st April 1867, her husband, Robert Lockhart Dymock, died on 16th April 1872, and Alexander Hill Gray on 15th May 1866. In these circumstances, a question arose, whether the £6000 of capital stock of the Bank of Scotland had vested in Robert Lockhart Dymock jun. and John Gray Dymock, or either of them, or, in the event of its not having vested, whether the said fund went to the heir in mobilibus, or to the residuary legatees?
The parties to the case were (1) the trustees under the trust-disposition of the said Robert Lockhart Dymock; (2) the said Mrs Penelope Ogle or Swan, as heir-at-law and sole next of kin, and heir in mobilibus of the said Andrew Storie; and (3) Mrs Anne Crombie or Gray, relict of the deceased Alexander Hill Gray. The questions submitted to the Court were:—
“(1) Whether the said sum of £6000 of the capital stock of the Bank of Scotland, the interest or produce of which was directed to be paid to Mrs Dymock and her husband in liferent, and on the death of the survivor of them, the capital of which was directed to be paid or transferred to their child or children who might be then alive, vested in the said Robert Lockhart Dymock jun. and John Gray Dymock, or either of them, and is payable to the first parties as in their or his right? or whether the said bequest of the capital of said stock lapsed?
“(2) In the event of the Court being of opinion that the said bequest of the capital of said stock lapsed, whether the said sum of bank stock is payable to Mrs Penelope Ogle or Swan as the heir in mobilibus of Mr Storie, or the same forms part of the residue of Mr Storie's trust-estate, and is payable to the whole parties hereto as residuary legatees, or in right of residuary legatees, of Mr Storie?”
It was argued for the First Parties that the bequest of £6000 was an absolute gift of the fee thereof to the children of Mr and Mrs Dymock, and the fact that both the sons predeceased the liferenters (their parents) did not nullify the gift, but the fee must be held to have vested in the last surviving son. If the £6000 should be held not to have vested, then it must go to residue.— Foreman v. Harrison, 5 Vesey, 206: Maitland's Trustees v. M'Dermaid, March 15, 1861, 23 D. 732; Foulis v. Foulis, Feb. 3, 1857, 19 D. 362.
It was argued for the Second Party (1) that the fee of the £6000 never vested in the said sons of Mr and Mrs Dymock, for the gift was to them only in event of their being alive at the death of their parents; and (2) that the £6000 not having vested must go to the heir in mobilibus of Mr Storie.
It was argued for the Third Party (1) that the fee of the £6000 had not vested in the sons of Mr and Mrs Dymock, and (2) that that being so, it must go to the residuary legatees.
At advising—
In regard to the first question submitted to us, the provision with which we have to deal is the settlement of £6000 upon the Dymock family. Mr Storie, the testator, had no children of his own, and his nearest relations were nieces and nephews, Mrs Swan was a niece of his own, and Mrs Dymock, wife of Robert Dymock, Procurator-Fiscal in Edinburgh, was a niece of his wife. Mr and Mrs Dymock had three children, but one predeceased Mr Storie, and died before the deed of settlement was executed. Thus at the date of the deed there were
Page: 265↓
Now if the clause had stopped here the fee would have certainly been undisposed of. But the clause goes on to make a gift in favour of the children. “And on the death of the survivor of them, I direct the capital of said stock to be paid or transferred to their child or children who may be then alive, in such shares, if more than one, as the parents may have appointed jointly during their life, and failing such appointment by them jointly, as the survivor of them shall appoint, which also failing, among the said children equally.”
Now it seems to me that this is a direction to pay the capital of the stock to the child or children who are alive at the death of the longest liver of the parents. It means that the person or persons then alive are to take, and nobody else. The gift is to the persons or person alive at a certain event, and therefore it is impossible to say that there was any vesting before that event happened.
Some other provisions of the deed were referred to in argument, but I think that they all bear as strongly on the one side as on the other. Take, for example, the provision to Mrs Swan. The direction is “to pay to Mrs Penelope Ogle or Swan, my niece, wife of James Swan, assessor of the shire of Renfrew, the interest of £12,000, to be invested by them in stock of the Banks of England or Scotland, or in landed security in Scotland, and that during her life, exclusive of the jus mariti and power of administration of her husband, and exclusive of his creditors, and after her death to pay the same to her said husband, if he survive her, during his life, and after his death to pay the capital sum to their children, in such shares as they, or failing their doing so, the survivor of them, shall direct in writing, or failing thereof, to the said children equally.” Now, in reference to this clause it was argued that it was the intention of the testator to make the same kind of provision for the Dymocks as is here made for the Swans; but, unfortunately for the contention, the wording of the clauses stand in clear contrast to each other. So, as little light is thrown upon the matter by the other clauses of the deed, I think that we must take the clear meaning of the words of the clause. Taking the clause in this way, it is plain that nothing vested in any child who died before the last survivor of the parents. I am therefore of opinion that the first question must be answered against the first party.
The, second question is, whether, supposing the bequest to have lapsed, the residuary legatees take? or whether there is intestacy as regards this fund? Now in the deed there is a proper residuary bequest, for the testator directs the residue of his estate to be divided into four equal parts, two whereof are to be paid to Mrs Swan, one to Mr Gray, and one to Mrs Dymock. The presumption is always against intestacy; and there is nothing here to prevent the residuary bequest from sweeping up everything which would otherwise have gone to the heir in mobilibus.
The other Judges concurred.
The Court held that the bequest of the capital of the £6000 stock of the Bank of Scotland had lapsed, and that the said sum formed part of the residue of Mr Storie's trust-estate.
Counsel for the First Party— Watson. Agents— J. & A. Hastie, S.S.C.
Counsel for the Second Party— Miller and Lancaster. Agents— Mackenzie & Kermack, W.S.
Counsel for the Third Party— Asher and J. A. Reid. Agents— Leburn, Henderson, & Wilson, S.S.C.