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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Young and Kirkpatrick [1877] ScotLR 14_235_1 (16 January 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0235_1.html
Cite as: [1877] ScotLR 14_235_1, [1877] SLR 14_235_1
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SCOTTISH_SLR_Court_of_Session
Page: 235↓
Court of Session Inner House Second Division.
Facts:
A testator by trust disposition and settlement directed his trustees to pay an annuity to his wife, and the whole residue of income to his son, with power to the son to test upon the fee of the estate. If the son predeceased his mother, the whole income of the estate was to be paid to her during her life. On the death of the wife the trustees were to convey the whole estate to the son, if then alive, and if dead to his issue, if he left any. Failing issue of the son, the estate was to be conveyed to such persons as the son might direct by any writing under his hand, and failing such direction to certain persons named in the trust deed.— Held that vesting did not take place till the death of the widow.
This was a Special Case for Mrs Young, widow of the deceased George Kirkpatrick Young of Glendoune, and John George Kirkpatrick Young, his only son, of the first part, and the same persons and others, as trustees under the trust-disposition and settlement and codicil after mentioned, of the second part. It was set forth in the Case that the late George Kirkpatrick Young died on 6th April 1874, leaving a trust-disposition and settlement and codicil thereto, dated respectively 20th May 1868 and 28th December 1871, both registered in Books of Council and Session on 24th June 1874. He was survived by his wife and an only son, John George Kirkpatrick, who was of full age—the first parties to the case. By the deed and codicil Mr Young conveyed his whole estates, real and personal, to the second parties as trustees, for the following purposes:—1st, Payment of debts; 2d, payment of an annuity of £400 in all to the widow, and to allow her the liferent use of the mansion-house of Glendoune, and shootings, &c.; 3d, payment of certain legacies; 4th, the trustees were directed, from the residue of the income of the estates, to pay to the truster's son, the said John George Kirkpatrick Young, such portion thereof as they might consider proper, and the truster expressed his wish that, by disposing of his railway and other stocks, and house in West George Street, Glasgow, the trustees might be enabled to pay off a debt of £5000 over the estate, and to build a farm-steading at Cairnhouse, and make a new road from Cairnhouse. The trust-deed proceeded—“After said debt is paid off and these improvements effected, the whole residue of income from my estate during the lifetime of my said wife shall be paid over to our said son, but with the rights and powers to him, as from and after my decease, of testing on the fee, as in article sixth hereof. Fifth, In the event of my said son predeceasing his mother, without leaving a widow or children, I direct in that event the free income arising from my whole estates, heritable and moveable, to be paid over to her during her life. Sixth, On the decease of my said wife, survived by our said son, I direct and appoint my trustees to convey over absolutely to him, in common form, the fee of the residue and reversion of my whole estates, heritable and moveable; and failing my said son, by his predeceasing his mother, but leaving issue, then to such issue, in such shares and proportions, and subject to such conditions and restrictions of liferent or provisions for his widow, or otherwise, as my said son may by any writing under his hand have directed, and failing such writing, then my trustees shall convey my estate of Glendoune and other lands in Ayrshire to the eldest son on attaining majority, or, if there be no son, to the eldest daughter on attaining majority, and the remainder of my estates to the other children equally, on their respectively attaining majority, with full power to apply the whole or any part of the income in their upbringing, education, and maintenance during their nonage; and failing issue of my said son, then to the persons he may have by any writing under his hand directed to
Page: 236↓
succeed to my said estates, subject and postponed always to the liferent of my said wife should she be then surviving, as provided for in article fifth. Seventh, In the event of my said son dying before receiving a conveyance to the residue of my estate, without leaving issue, or exercising the power granted to him of testing as aforesaid, then, and on both of these events occurring, I appoint my said trustees, on the death of my said wife, to dispone and convey my estate of Glendoune and lands in Ayrshire, free of debt, to George Gillespie Young, my grandnephew, in liferent allenarly, and the heir of his body whom he shall appoint, failing which appointment his heir-at-law, being issue of his body, in fee,” with further conditional limitations in favour of other grandnephews. The remainder of the estates, heritable and moveable, other than Glendoune and lands in Ayrshire, were directed to be sold and converted into cash, and the proceeds divided in shares among such of the parties therein named as might be alive at the decease of the truster's widow, “the same (failing all the prior destinations) vesting in them only on survivance.” On the death of Mr Young the second parties entered on the management and administration of his estate. The personal estate amounted to above £4000. The heritable estate consisted of house property in Glasgow, yielding a gross rental of about £1387 a-year, and of the estate of Glendoune, yielding a rent of about £700 a-year. The debts and legacies had been paid, and the house in West George Street, Glasgow, had been sold. The heritable debt of £5000 referred to in the settlement was paid off during the truster's life. It was stated at the bar that the trustees were in course of carrying out the improvements above mentioned. The only burden affecting the estate was the annuity of £400 a-year to the truster's widow. The first parties called upon the second parties to denude of the trust and convey and make over the whole of the trust-estate to the said John George Kirkpatrick Young, under burden of the annuity in favour of his mother, the truster's widow, who had consented to discharge her whole interest in the trust-funds (that is, the annuity and contingent liferent) on the said annuity being properly secured. The following questions were submitted for the opinion and judgment of the Court:—“Is the said John George Kirkpatrick Young fully vested with right to the trust-estate, subject to the provisions in favour of his mother? and are the second parties entitled and bound, on the requisition of the said parties, to convey and make over the said estate to the said John George Kirkpatrick Young on the truster's widow discharging her interests under the settlement? Or, are the second parties bound to continue to hold the said estate until the death of the truster's widow?”
Argued for first parties—(1) The substantial object of the trust is to secure the widow in her annuity and contingent liferent, and her death is to be followed by a conveyance without substitutions; (2) the annuity does not suspend vesting; (3) even prior to death of annuitant, the residuary liferenter has an absolute power of disposal by will, except in the case of his having children. Where an absolute right is given on survivance, the mere institution of grandchildren does not suggest any intention to protect their succession from the parent. [ Court—You wish to substitute a discharge by the widow for the condition of survivance mentioned in the deed.] We maintain the right has vested.— Pretty v. New-bigging, 16 D. 667. In Pursell v. Newbigging ( 15 D. 489, and 2 Macq. App. 273) there was a substitution of heirs of the body, but fee was found to be vested.
Argued for second parties—The settlement discloses an intention to suspend vesting. Provision is made for the case of the son surviving the testator and predeceasing widow. In Pretty v. Newbigging there was no destination beyond issue who took under a marriage-contract. Here we have a mortis causa settlement; and it is not clear that an arrangement such as is proposed would carry out the 6th purpose of the trust. There is no case where an incumbrance has been allowed to accelerate vesting— Sloan v. Finlayson, 20th May 1876, 3 Rettie, 678.
At advising—
This is certainly not the simple case of an estate or fund being destined to a party and his
Page: 237↓
I am unable to avoid the conclusion that in the present case, according to any admissible construction of the testator's settlement, the vesting of the residue of his estate was not intended and cannot be held to occur sooner than the death of his widow, that being expressly and unequivocally, as it appears to me, the condition upon which the vesting of the fee in the testator's son is made to depend. Accordingly, the nature and extent of the son's interest in the estate prior to the widow's death, as defined in the settlement, is such, taken in connection with the ulterior destinations, as to show unmistakeably, I think, that the testator did not intend that the fee should be then vested in the son. It is, on the contrary, expressly stated that he should not, prior to the death of his mother, have the power of dealing directly or immediately with the fee of the estate i to any extent whatever, but merely a power of testing on it to the effect of apportioning the shares which his issue, if he should leave any, were to take in the event of his dying before his mother. The testator further, with great care and precision, provides for the contingencies of his son predeceasing his mother without leaving issue or without apportioning their shares of the estate; but, on the assumption that the fee had not vested or was intended to vest a morte testatoris, all that was useless and unmeaning. Nay, so anxious does the testator appear to have been to preclude the vesting of the fee of his estate in his son prior to the death of his mother, that he expressly provides in the 7th purpose of his settlement, for the contingency of his dying “before receiving a conveyance to the residue of my estate or exercising the power granted to him of testing, as aforesaid,” by destining the estates to other parties in a manner and subject to conditions quite inconsistent, as it appears to me, with the idea that there could have been vesting in his son subject merely to the burden of his widow's liferent.
In these circumstances, which are special and peculiar, I am unable to see that there was, or that the testator intended that there should be, any vesting of the fee of the residue of his estate till after the death of his widow. And as the party or parties in whom it may then vest are left uncertain, depending as this does upon various contingent conditions, I am equally unable to see how the period of vesting can in existing circumstances be anticipated or accelerated in the manner and with the concurrence suggested in the case. Were the authority of precedent necessary in support of this view, I think it is to be found in the case of Wright v. Ogilvie (9th July 1840, 2 D. 1358), where in circumstances in many respects similar to those of the present case it was held that the fee of a fund liferented by the testator's widow did not vest till after her death. But what I desire to rest my judgment upon is what I must hold to be the clearly manifested intention of the testator, that there should be no vesting or right of disposing of the fee of the residue of his estate in any one till after the death of his widow.
The result is, that in my opinion the first question submitted in the Special Case for the opinion and judgment of the Court must be answered in the negative, and the second in the affirmative.
But there is great difficulty in reaching this result, and I have come ultimately to agree with both your Lordships that the first question must be answered in the negative, and the second in the affirmative.
The question of law upon which the whole case turns, is whether the fee of the trust-estate is or is not now absolutely vested in Mr Young, subject only to the provisions in favour of his mother? If the whole fee is at present and during Mrs Young's life fully vested in Mr Young, then Mrs Young's provisions, which are all of the nature of liferents or annuities, would not prevent the winding up of the estate, Mrs Young consenting or renouncing her rights. The question whether the fee has so vested in Mr Young or not depends on this farther question—Whether upon a sound construction of the deed there is any contingent or uncertain event upon which Mr Young's right to the fee is made to depend? for an uncertain condition which may or may not be purified before the term of payment will suspend vesting. Now, I rather think that there is such an uncertain or contingent condition provided and contained in the late Mr Young's trust-deed. I refer to the case specially provided for, of Mr Young, the only child of the granter, dying before the widow and leaving issue, in which case the fee of the trust-estate is to belong to such issue, and Mr Young, the truster's son, is not to have an absolute right of disposal or even an absolute right of testing on the estate, but only a power of apportionment thereof among his children. I think that the existence of this contingency is sufficient to suspend the vesting.
No doubt it has sometimes been held that in a destination-over where the issue of a legatee are substituted failing the legatee himself before the term of payment, this does not suspend the vesting in the legatee, it being merely the expression by the testator of what the law itself would do under the condition si sine liberis; but in the present case the provision to grandchildren is so special, and accompanied by only a limited power of apportionment, that I can hardly hold this destination-over to be mere surplusage or an expression of what the law itself would do, but I think it infers a conditional provision that if the son dies before his mother and leaves issue, then no right of fee shall vest in the son, but his issue will take in their own right in the proportions which their father may fix. I therefore concur with your Lordships, though I cannot say I do so without difficulty or hesitation.
The Court answered the first question in the negative, and the second question in the affirmative.
Page: 238↓
Counsel for First Parties— M'Laren. Agent— John Carment, S.S.C.
Counsel for Second Parties— Moncreiff. Agent— John Carment, S.S.C.