Scottish Court of Session Decisions

The parties to this Special Case were,—of the first part, David Curror, S.S.C. judicial factor on the trust-estate of the deceased John Henderson, builder, Edinburgh, and, of the second part, the fiars and residuary legatees under the trust-disposition and codicil of the said John Henderson, dated 28th May 1857. The facts as stated on record were—The testator was survived by his two daughters mentioned in the said trust-disposition and settlement, viz., Mrs Margaret Henderson or Brown and Mrs Catherine Henderson or Nisbet, and by his daughter-in-law, also therein mentioned, viz., Mrs Caroline Graham or Henderson, the relict of the testator's deceased son John Henderson, all of whom are still alive. All of the testator's grandchildren mentioned in the said trust-disposition and settlement survived him, viz., (1) his said son John's children, John Henderson and Walter Henderson; (2) the said Margaret Henderson or Brown's children, Robert Brown (since deceased), Mrs Margaret Brown or Thomas Christina Brown (since deceased), Mrs Hellenore Brown or M'Gregor, Miss Lousia Brown, John Henderson Brown (since deceased), and Miss Mary Catherine Brown; and (3) Miss Margaret Wilhelmina Nisbet, daughter of the said Mrs Catherine Henderson or Nisbet, Miss Agnes Nisbet, who was born on the 11th August 1859, after the execution of the said trust-disposition and settlement and codicil, also survived the testator. The said Robert Brown died, without issue and testate, on or about 18th September 1869. The said Christina Brown died, without issue and intestate, on or about 21st November 1865. The said John Henderson Brown died, without issue and intestate, on or about 6th July 1865. There were thus eight of the testator's grandchildren who at the expiry of the period of ten years after the testator's decease were alive, as they still are. The said Margaret Wilhelmina Nisbet and Agnes Nisbet are minors, and are both above twelve years of age. The other grandchildren have all attained majority.

On the 4th May 1860, the said David Curror was appointed by the Lords of Council and Session judicial factor on the said trust-estate, in consequence of the trustees nominated in the said

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truat-disposition and settlement having declined to act. In terms of the first purpose of the trust, he paid the truster's debts, &c.; and in terms of the second purpose, he, during the period of ten years from and after the testator's decease, annually applied the free income or proceeds of the residue of the trust-estate in manner provided by the said second purpose. The said period of ten years expired on the 11th March 1870, and in terms of the third purpose of the deed it became necessary to set apart and invest as much of the capital of the said estate as would yield a free annuity of £75 sterling to each of the truster's daughters, and an annuity of £10 sterling to the said Caroline Graham or Henderson, his daughter-in-law. The residue of the estate not required for such investment fell to be divided in terms of the said third purpose. On the 19th July 1870, a Special Case was presented to the First Division of the Court, setting forth the above-mentioned particulars, and the claims of the parties interested, the value of the whole trust-estate, and the estimated sums required to yield the amount of the said annuities The judgment of the Court was to the effect that the said surplus estate was to be divided among the eight grandchildren of the testator then in life, equally, share and share alike. In terms of this decision, the judicial factor, after deducting the sum of £4933, 6s. 8d.; and a farther sum of £300, to be appropriated as a fund, yielding annually the amount required to meet the said annuities, and the expenses of management, divided the balance or residue of the trust-estate, being the difference between £8300 and the sum so retained, among the eight grandchildren of the truster, equally, share and share alike. He still retains the said two sums, amounting together to £5233, 6s. 8d., for the purpose of meeting the three annuities and expenses of management. But in as much as the sum retained was calculated with reference to an investment in the public funds, yielding a little over 3 per cent., while, in point of fact, the greater part of the estate is invested at 4 1 2 and 5 per cent., the sum in the judicial factor's hands is at present considerably in excess of what is required for these purposes. There is also a small sum of accumulated interest in the hands of the judicial factor. In the event of the Court answering the first question in the affirmative, the parties hereto consent and agree that the sum which should have been retained to meet said annuities, and which falls to be divided in terms of the fourth purpose of the said settlement, shall be held to have been £4500, and shall be divided into tenths; and that the balance of the said sum of £5233, 6s. 8d., and any accumulations of interest in the hands of the factor, shall be divided in terms of the said judgment of the First Division.

The consenting parties of the second part—viz., Mrs Margaret Henderson or Brown, Mrs Catherine Henderson or Nisbet, the said George Nisbet her husband, and Mrs Caroline Graham or Henderson, have executed a deed of renunciation and discharge of the annuities payable to the annuitants in favour of the other parties of the second part, containing a declaration that such renunciation and discharge shall operate as a purification of the rights of the beneficiaries under the said trust-deed, and have the effect of vesting in them their shares of the trust-estate as if the three annuitants were naturally dead.

The second, third and fourth purposes of the trust were as follows:—“ Second, I direct my said trustees to hold and retain the residue of my whole heritable and moveable, real and personal, estate, for the period of ten years from and after my decease, and during that time annually to divide the free income or proceeds arising therefrom into three equal shares, and to pay one of these shares to each of my daughters, Margaret Henderson or Brown, wife of Robert Brown, architect in Edinburgh, and Catherine Henderson or Nisbet, wife of George Nisbet, farmer, Tranent, half-yearly at two terms of the year—Martinmas and Whitsunday—in equal portions, commencing at the first term of Whitsunday or Martinmas immediately after my death; and with regard to the remaining third share of said free annual income or proceeds, I direct my said trustees to pay therefrom to Caroline Graham or Henderson, relict of my eldest son John Henderson, architect in Edinburgh, now deceased, a free annuity of £10 sterling, payable half-yearly at two terms of the year, Whitsunday and Martinmas, in equal portions, commencing at the first term of Whitsunday or Martinmas that shall happen immediately after my decease, but so long only as she remains unmarried; declaring that if the said Caroline Graham or Henderson shall enter into a second marriage, said annuity shall cease and determine: And I further direct my said trustees, out of said third share of income, to pay to John Henderson, eldest son of the said Caroline Graham or Henderson, an annuity of £15 sterling until he attains 21 years of age; and to pay to Walter Henderson, younger Bon of the said Caroline Graham or Henderson, an annuity of £20 sterling until he attains 21 years of age, said annuities to my said two grandsons John and Walter Henderson being paid to them half-yearly at the terms of Martinmas and Whitsunday, in equal portions, commencing at the first term of Martinmas or Whitsunday that shall happen immediately after my decease, or, in the option of my said trustees, said annuities to be expended for behoof of the said John and Walter Henderson in such manner as to my said trustees shall seem beneficial and expedient, of which they shall be sole judges; and with regard to the balance or surplus of the said third share of income, after satisfying the said annuities to the said Caroline Graham or Henderson and her two children before named, I direct my said trustees to accumulate and invest the same for behoof of the parties who shall, at the period of division hereinafter specified, become entitled to the fee of the residue of my estate, in virtue of these presents; and if either of my said daughters shall die before the expiry of the said ten years, leaving lawful issue of her body, I direct my said trustees to hold and accumulate the third share of the income of my estates effeiring to such deceased daughter for behoof of her said issue until the said ten years expire, with power to my said trustees to apply the whole or any part of such third share of said income for the maintenance and education of the lawful issue of such of my said daughters as shall decease, in a suitable manner, if my said trustees shall consider it expedient, of which they are to be the sole judges: Third, Upon the expiry of said ten years after my decease, if both or either of my said daughters are then in life, I direct my said trustees to set apart and invest as much of the capital of my said estate as will yield a free annuity of

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£75 sterling to each of my said daughters during all the days of their lives, payable half-yearly at Martinmas and Whitsunday in equal portions, and as will further yield the foresaid annuity of £10 sterling herein provided to the said Caroline Graham or Henderson during all the days of her lifetime, so long as she remains unmarried: And I appoint the residue of my said estate to be divided amongst the said John and Walter Henderson, being the only children of my deceased son John Henderson, Robert, Margaret, Christina, Helenore, Louisa, John Henderson, and Mary Catherine Brown, being the seven children presently in life of my said daughter Margaret Henderson or Brown, and Margaret Wilhelmina Nisbet, child of my said daughter Catherine Henderson or Nisbet, and amongst any other children who _ may hereafter, before the expiry of the said period of ten years after my decease, be procreated of the bodies of my said, two daughters Margaret Henderson or Brown and Catherine Henderson or Nisbet, or either of them, or amongst such of my whole grandchildren hereinbefore specially named, or to be procreated as aforesaid, as shall be in life at the expiry of the said period of ten years after my death, and that equally, share and share alike, said shares to be immediately paid over to such of my said grandchildren as shall then have attained 21 years complete; and the shares of such of them as shall be in minority to be consigned in bank or invested for their behoof until they attain majority; but in the meantime my said trustees may pay to them, or expend for their behoof, the income of the shares of such of said grandchildren until they severally attain 21 years: Declaring that in all cases the children or issue of any of my grandchildren deceasing shall take equally, share and share alike, the portion of said residue of my means and estate which their parent would have taken if in life: Fourth, In the event of my said daughters, or either of them, being in life at the expiry of the said period of ten years after my death, in which case a portion of my said estate is to be set apart and invested in order to yield to each of them the foresaid annuities of £75 sterling, as before provided, I hereby direct that, upon the death of the survivor of my said daughters, the fee or capital sums set apart for said annuities shall be divided equally amongst my whole grandchildren before specified—that is, the children of my son, the said deceased John Henderson, and of my daughters, the said Margaret Henderson or Brown and Catherine Henderson or Nisbet, who may be then in life, share and share alike, and paid over to such of my said grandchildren as shall have attained majority; and in the event of any of them being then in minority, I appoint their shares to be invested or consigned in bank until they so arrive at 21 years of age, in the same manner as above provided with reference to the division herein appointed to be made of my said funds and estate upon the expiry of ten years immediately after my death: Declaring that in the event of both of my said daughters being in life at the expiry of the said period of ten years, the sum set apart and iuvested to meet the annuity of £75 to her who shall thereafter first decease, shall not be divided until her surviving sister also die, as above specified, but shall be held, and the interest thereon accumulated by my said trustees from the date of the death of my said first deceasing daughter, aye and until the said period of division hereby appointed to take place at the death of my surviving daughter: And further declaring that no right shall be held to have vested in any of my said grandchildren until they are respectively entitled to demand payment of their shares of my means and estate above provided to them: Which provisions in favour of my said children and mywhole grandchildren, and also the annuity to the said Caroline Graham or Henderson, are hereby declared to be strictly alimentary provisions to them respectively, and shall not be assignable by them nor affectable by arrestment, adjudication, or other diligence of creditors, nor be subject to the jus mariti, nor the diligence of the creditors of any of the husbands of my said daughters, nor of the husbands which any of my female grandchildren may marry, but shall be payable to my said daughters and my whole grandchildren on their own receipts allenarly; and in case of any of my said daughters predeceasing their husbands, such husbands shall have no right to interfere in any way concerning the administration of the trust affairs, nor with the shares of the annual proceeds of my estate effeiring to the children of their deceased spouses, which my trustees shall pay or lay out for behoof of said children themselves: And I hereby declare that the provisions above written, conceived in favour of my said daughters, shall be accepted of by them in full of all legitim, portion-natural, bairns' part of gear, executry, or others whatsoever, which they, or either of them, can by law ask or demand by and through my decease in any manner of way.”

The questions submitted for the opinion of the Court were:—“(1) Whether the residue of the said John Henderson's trust-estate, now under the management of the first party, as indicial factor, is, in consequence of the renunciation and discharge of the annuities chargeable thereon, now divisible among the principal parties of the second part, and whether they are thus entitled to immediate payment of their respective shares of the capital in the proportions specified in the said trust-settlement and codicil? (2) In the event of the foregoing question being answered in the negative,—Whether the principal parties of the second part are entitled to claim any, and what part of the said residue, in terms of the third purpose of the trust-settlement, in respect that the sum retained by the judicial factor is more than is actually required for the purpose of providing the said annuities? (3) Whether the surplus means or revenue, if any, falls to be divided yearly among the eight grandchildren who were found entitled to participate in each division, or whether the said surplus falls to be accumulated and divided with the residue?”

At advising—