Scottish Court of Session Decisions

Lord President—The first question in this case is regarding an annuity left by the testator Mr Cuninghame to his sister Mrs Duke, who died on 27th October 1871, the annuity being payable at Whitsunday and Martinmas. The parties of the second part are her children, and they contend that, she having died during the currency of a term, her representatives are entitled to a portion of the annuity. The trustees contend that the annuity payable and paid was paid in advance. I am not sure that I can affirm either the one or the other of these propositions. It is not necessary to say whether the annuity is payable in advance, and still less are the children entitled to the amount they claim; that depends on the precise words of the settlement. The trustees are desired to pay to Mrs Duke “an annuity of £200 sterling yearly, during all the days and years of her life,” and besides a legacy to each of her children, another annuity of £200 yearly to the testator's other sister Mrs Main, payable, both annuities, half yearly, by equal portions, at the usual terms of Martinmas and Whitsunday in each year, commencing the first year's payment of each of said annuities at the first term of Martinmas or Whitsunday after my death, and continuing the same half-yearly thereafter; and it is further provided that these “annuities to my said sisters, and legacies to the children, where female, of my said brothers and sisters, are hereby specially provided and given for the liferent alimentary use allenarly of my said annuitants and female legatees, exclusive of the jus mariti and right of administration of their present or future husbands.”

It is impossible to read this settlement without seeing that the testator intended that Mrs Duke should have an annuity corresponding in amount to the time which she survived him, aud the question is, whether she has not received an annuity corresponding to every day which she lived after her brother. Mr Cunninghame died 9th November 1866, and Mrs Duke on 27th October 1871, so that she survived him four years, eleven months and thirteen days. As regards payment, she received a full year's annuity of £200 at Martinmas 1866; she received nothing at the following Whitsunday, but at every subsequent term, the sum of £100, being a full half-year's annuity. That amounts, including the first payment, to £1000, which is five years' annuity, so that she has in fact received more than she was entitled to. I am of opinion therefore that her children have no claim to any share.

The next question regards the legacies left by Mr Cunninghame to each of Mrs Duke's children. The terms of the bequest are as follows—“and after her death, each of her children shall be paid a legacy of £1000 sterling when my trustees find it suitable and convenient to pay the same, and which shall be so secured to said children as my trustees may consider best for their welfare and benefit.” No distinction is made here between sons and daughters; but further on it is provided that these “legacies to the children, where female, of my said brothers and sisters, are hereby specially provided and given for the liferent alimentary use allenarly of my said annuitants and female legatees, exclusive of the jus mariti and right of administration of their present or future husbands; and the said annuities and legacies shall in no ways be liable to or affectable by the debts or deeds of such husbands, or in any way subject or liable to the diligence of their creditors; and further, declaring that the simple receipt and discharge of my said sisters and female legatees respectively, without the consent or concurrence of their respective husbands, shall be a sufficient exoneration, acquittance, and discharge to my trustees for said annuities and legacies.”

Now the daughters of Mrs Duke contend that they are entitled to immediate payment on their own receipt. The trustees, on the other hand, contend that they are not entitled to pay, but are bound to hold, or otherwise that it is in their discretion either to pay or to hold till they think it suitable and convenient to pay. There seems to me to have arisen some little confusion. The trustees are not to pay the legacies until they find it suitable and convenient; that seems to me to point to their management of the trust-estate. But when the suitable and convenient time comes there is another condition that the money “shall be so secured to said children as my trustees may consider best for their welfare and benefit;” and the right of the daughters is limited to a liferent only; the trustees must so settle the money as to give them a liferent alimentary use of it. The only difficulty in regard to this last condition is that the simple receipt and discharge by the said daughters, without consent of their husbands, is to “be a sufficient exoneration, acquittance and discharge to my trustees for said annuities and legacies”—which rather suggest the idea of a payment of capital; but taking that in connection with the other provisions, I think it simply means that the daughters may by themselves discharge whatever they receive—and even supposing capital to be meant, it is quite possible to read it in harmony with this; the testator's leading idea being that a settlement should take place when the daughters married. I have no doubt that the daughters of Mrs Duke are not entitled to payment immediately. What the trustees may be bound to do I cannot at once say, but I am clear they are not bound to pay immediately, and that is the question we have to decide. The circumstances may change, but at present all the answer which we can make to the second question is that Mrs Duke's daughters are not entitled to payment of the legacies to them at once on their own receipt and discharge.