Scottish Court of Session Decisions

This Special Case was presented under the following state of facts;—(1) The said deceased William Cleland died, without issue, on or about 22d August 1854, leaving a trust-disposition and settlement, dated 21st September 1847, and with codicil thereto, dated 14th December 1853, registered in the books of Council and Session 20th September 1854. The said James Jack, the first party to this case, is now the sole surviving trustee under this deed. (2) The second parties to this case are the residuary legatees named in the said trust-disposition, and they are the whole children of the deceased Mrs Agnes Cleland or M'Nab, who was a sister of the said deceased William M'Nab, the testator. She survived her brother, and died on November 1866. The said second parties have all issue at present alive. (3) The third party to this case is also a sister of the testator, and she is represented in this case for her interest as an annuitant to the amount of £52 per annum under said trust-disposition, but she has no interest in the questions to be now submitted to the Court, and it is hereby stated on her behalf that she will consent to accept of such provision for her annuity as may be arranged between the first and second parties hereto, and she is thereupon ready to discharge any right which she may have to insist upon the trust being kept up. (4) Mrs Mary Williamson or Cleland, the testator's wife, who survived him, died in May 1866, and, as before mentioned, Mrs M'Nab, his sister, died in November 1866. These were the two liferenters of the estate, and the same is now held by the trustee for behoof of the parties who may be found to be entitled to the residue thereof, subject to the burden of the annuity of £52 to Miss Cleland, as before mentioned. (5) The parties of the second part contend that the residue has now vested in them, and they call upon the trustee to denude in their favour—due arrangement being made for payment of the said annuity—but the trustee is not satisfied that the residue has so vested.

The question presented to the Court was—“Whether the residue of the said trust-estate has now vested in the second parties, and whether the trustee is entitled now to divide the estate amongst them, under arrangement for payment of Miss Cleland's annuity?”

The fourth, fifth, and sixth purposes of the trust-deed were as follows:—“In the fourth place, I direct and appoint my said trustees to make payment to my sister Elizabeth Cleland of a free yearly annuity of £52 sterling, payable quarterly, at the terms of Whitsunday, Lammas, Martinmas, and Candlemas, by equal portions, beginning the first term's payment of said annuity at the first of these terms that shall happen after my death, and so forth quarterly thereafter during all the days of her life, with the legal interest thereof from the respective terms of payment till paid: In the fifth place, I appoint my said trustees, after investing the foresaid sum of £900 for behoof of my said spouse in liferent, and securing her in the liferent of the subjects in manner above mentioned, and paying the said annuity provided to my sister, to account for and pay over the annual free residue arising from my heritable and moveable estate, after deducting the expense incurred in the management of this trust, to my sister Mrs Agnes Cleland or M'Nab, spouse of William M'Nab, druggist in Peebles, whom failing, to her children, share and share alike; declaring that in the event of either or both of the said Mrs Mary Williamson or Cleland and Elizabeth Cleland predeceasing the said Mrs Agnes Cleland or M'Nab, the provisions hereby settled upon my said spouse and sister Elizabeth Cleland shall devolve upon and be liferented by the said Mrs Agnes Cleland or M'Nab; and declaring also that in case the annual free proceeds shall not amount to the sum of £40, it will be in the power of the said trustees, if they think proper, to borrow money either on bill or personal bond, or on the security of my heritable estate, sufficient to make the annual allowance to my sister, the said Mrs Agnes Cleland or M'Nab, during her life, equal to the said sum of £40 sterling, but the said trustees shall not have the power to burden my said estate for said allowance so as ultimately to affect the provisions conceived in favour of my said spouse and my sister the said Elizabeth Cleland; and lastly, upon the death of the said Mrs Mary Williamson or Cleland and Elizabeth Cleland and Mrs Agnes Cleland or M'Nab, I appoint and direct my said trustees to sell and dispose of my whole heritable estate particularly and generally before conveyed, or such parts thereof as may then remain unsold, with the household furniture and others liferented by my said spouse, and that either by public roup or private sale, as to them shall seem proper, and after payment of the expense attending said sales, and other expense of management, my said trustees shall divide the free proceeds thereof, along with my other means and estate, equally among John M'Nab, William M'Nab, and Mrs Jane M'Nab or Hedderwick, my nephews and niece, children of the said Agnes Cleland or M'Nab, and the survivor of them, share and share alike, declaring always, as it is hereby expressly provided and declared, that in the event of any of the said John M'Nab, William M'Nab, and Mrs Jean M'Nab or Hedderwick predeceasing their said mother, and leaving lawful issue, the share which would have fallen to such of them predeceasing, had he or she survived her, shall be equally divided among his or her issue then in life.”

At advising—