Scottish Court of Session Decisions

John Lucas, farmer, Corntoun, Bridge of Allan, died on 4th April 1878, survived by a widow but, without issue, leaving a trust-disposition and settlement whereby he conveyed to trustees his whole estate, heritable and moveable. By the fourth purpose of this deed he directed his trustees to pay certain legacies to his servants, and to pay annuities to two half-sisters. By the ninth purpose he directed his trustees “on the death of his widow to pay to the children of James M'Laren surviving at said period the sum of £100 each. The eleventh purpose was for payment to his widow, if there should be no children of the marriage surviving the testator, an annuity of £200, and the liferent of certain heritable property, any further income which the trust-estate might yield after satisfying these provisions and the expense of the trust to be accumulated during the lifetime of the widow and to form part of the estate. The deed then provided, failing children of the marriage and on the death of testator's widow, that the trustees should pay to her brother Robert Donaldson, presently residing in New Zealand, “provided he return to this country and reside here, and also provided my said trustees consider that he requires the same, and of which they shall be the sole judges, a free yearly annuity during all the days of his life so long as he remains in this country.” The thirteenth purpose provided that failing children as aforesaid, and on the death of the testator's widow, the trustees should, “after paying and providing for the other purposes of this trust, pay, assign, and dispone the rest, residue, and remainder of my said means and estate to and in favour of” certain trustees “as perpetual trustees and patrons of the fund after mentioned, and for the following purpose, viz., for founding and maintaining with the said residue a fund or trust to be called ‘The Lucas Trust.’” Then followed a number of provisions for the benefit of the poor of Bridge of Allan and the adjoining parishes of Logie and Lecropt, for whose benefit the “Lucas Trust” was to be founded.

Page: 364↓

On Mr Lucas' death the trustee entered on the management of the estate and began payment half-yearly of the two annuities to the testator's half-sisters which were to come into immediate operation. The children of James M'Laren, who were to receive legacies of £100 on the death of Mrs Lucas, were ten in number, the youngest of them being three years of age. Their father was forty-nine years of age, their mother fifty years. Robert Donaldson's annuity, provided he resided in this country and in the trustees' opinion required it, was also not to become payable till the death of Mrs Lucas. He returned to this country and took up his residence in. Bridge of Allan. Mrs Lucas repudiated the provisions in her favour above narrated and elected to take her legal rights. The trustees therefore made payment to her of her jus relictœ, and were also prepared to satisfy her right of terce. In these circumstances the only purposes of the trust remaining to receive effect were the annuities payable and to be payable, the legacies to become payable, and the conveyance of the residue to the patrons of the Lucas’ Trust, who maintained that the trustees under the settlement were now bound, after providing for the widow's right of terce and for the legacies and annuities still payable and to be payable, to convey the residue to them for the purposes of the Lucas’ Trust; or otherwise, that it was the duty of the trustees under the settlement to convey the whole estate to them under burden of paying and providing ante omnia for the widow's right of terce and the annuities and legacies payable and to be payable.

In these circumstances this Special Case was presented to the Court for the testamentary trustees as first parties, and the patrons of Lucas Trust as second parties.

The questions for opinion and judgment were—“(1) Are the parties bound to retain the said residue and accumulate the balance of income accruing thereon until the death of the said Mrs Lucas? or (2) Are the second parties, subject to the said existing and contingent interests, entitled to an immediate conveyance of the said residue? or (3) Are the second parties entitled during the lifetime of the said Mrs Lucas to payment of the balance of income derivable from the said residue, and on her death to payment of the residue, subject to the then existing interests?”

Argued for the first parties—The legacies to the children of Mr M'Laren were special legacies to each of the children who might be alive at the death of Mrs Lucas. More children might yet be born to Mr M'Laren. If the widow's repudiation of the provisions on her behalf were held as in the circumstances equivalent to her death, as the second parties contended, such future born children would lose their legacies. The first parties were bound to retain the estate for payment of the annuity to Robert Donaldson in the event of their holding him entitled to receive it— White's Trs. v. Whyte, June 1, 1877, 4 R. 786.

Argued for second parties—The difficulty as to Robert Donaldson's annuity would have been exactly the same if the wife had died instead of repudiating her provisions. The testator's object was just to secure the annuity, and that object would be served by the Lucas Trust undertaking to pay it if so directed by the first parties— Alexander's Trs. v. Waters, Jan. 15, 1870, 8 Macph. 414; Cameron v. Young, Feb. 8, 1873, 45 Jurist 272. As to the existence of future children of Mr and Mrs M'Laren, in the parallel case of M'Niven's Trs. v. M'Niven, June 9, 1847, 9 D. 1201, the Court took the class of persons to be benefited as they existed at the date of the repudiation.