Scottish Court of Session Decisions

This was a reclaiming-note against an interlocutor by Lord Fraser in an action of multiplepoinding. The fund in medio consisted of the personal estate left by the late John Rogerson, Kirkburn, Dumfries, amounting to about £7245, and the competition for preference arose between the trustees acting under his trust-settlement and the executor-nominate of his son, the late Samuel David Rogerson, farmer, Wamphray. The executor claimed on the ground that the right to the fund had vested in the son Samuel Rogerson, who was the only child of the marriage under and in terms of the antenuptial contract between his father and mother, which conveyed the trust-estate to trustees for behoof of his wife, to whom the annual produce of the trust moneys was directed to be paid during her life, and after the death of both spouses, “then in trust and for the benefit of all and every the children of the said John Rogerson and Mary, his intended wife, in such shares and proportions, and subject to such conditions and provisions, as they, the said John Rogerson and Mary, his intended wife, or the survivor of them, shall by any deed or instrument, or last will and testament, duly executed and attested, direct and appoint.” The trustees claimed in virtue of a trust-deed and settlement by John Rogerson, which he executed after his wife's death in terms of the above clause in his marriage-contract. In this he directed his trustees to pay the income of his estate to his only child Samuel till he attained the age of thirty, and then to convey over to him the capital, and failing Samuel attaining the said age and dying without issue, he appointed his estate to be divided amongst a number of other relations. They pleaded (1) that the fund had not vested in Samuel David Rogerson, as he had died before the age of thirty years complete; and (2) that he had homologated his father's settlement by taking payment of the income and not claiming the capital after his father's death.

The Lord Ordinary sustained the claim of Samuel David Rogerson's executor, adding this note:—“The indenture or contract of marriage between John Rogerson and Mary Dobie was executed in England, and is couched in the phraseology of English conveyancing law. It is not pleaded that it ought to be construed according to the law of England, or that any different rules of construction should be applied to it than those rules which would govern a marriage-contract executed in Scotland. Therefore, dealing with this document as if it had been a Scotch marriage-contract, the question to be determined is,” Whether the estate of the father John Rogerson vested in his son Samuel at the father's death?

“The Lord Ordinary is of opinion that it did. By the marriage-contract John Rogerson assigned, covenanted, promised, and agreed that on and immediately after his death the trustees therein named should enter upon and take possession of his whole personal property, and hold the same for the purposes set forth in the deed; and further, that he should immediately after the marriage make his last will, bequeathing his personal property to these trustees as his executors, and should not alter or revoke the same. The trust so created was for behoof of Mary Dobie, the wife, to whom the annual produce of the trust moneys was directed to be paid during her life, and after the death of both spouses, ‘then in trust and for the benefit of all and every the children of the said John Rogerson and Mary, his intended wife, in such shares and proportions, and subject to such conditions and provisions, as they, the said John Rogerson and Mary, his intended wife, or the survivor of them, shall by any deed or instrument, or last will and testament, duly executed and attested, direct and appoint.’

John Rogerson did not immediately after the marriage execute a last will and testament, as contemplated by the contract, and it was only after his wife's death that he executed the trust-disposition and settlement referred to upon the record, by which he directed his trustees to pay the income of his estate to his only child Samuel till he attained the age of thirty, and then to convey over to him the capital, and failing Samuel attaining the age of thirty, and dying without issue, John Rogerson appointed his estate to be divided amongst a number of other relations.

The idea in the mind of the truster seems to have been that he had full power to do with his estate, notwithstanding the marriage-contract, whatever he pleased. This, however, was a mistake. He was bound to leave the property to the children of the marriage, having power, no doubt, of apportionment or division among them if there were several children; and apparently it was in the exercise of this power that he made the disposal of the estate in the way he did by his trust —disposition and settlement. Now, as there was only one child, there was no necessity for apportionment or division, because any division could only be between that child and himself, or his legatees, which would be a fraud upon the contract ( Brodie's Trustees v. Mowbray's Trustees, 12th November 1840, 3 D. 31). Whether he had power to postpone the payment of the capital to the only child of the marriage, and give to him only the income till he attained the age of thirty, it is not necessary to determine. The parties assumed at the debate that under the clause authorising John Rogerson to impose ‘conditions’ he had power to postpone the payment. But this point has no bearing upon the main point, as to whether the right of Samuel, the son, became a vested right at his father's death which he could convey by his last will.

The marriage-contract directs the trustees to hold the funds for the widow, paying her the income while she lived, and then for behoof of the children of the marriage. There is nothing in this deed of the nature of a destination-over or a clause of survivorship to prevent vesting immediately

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upon the death of both parents; and John Rogerson had no power whatever to defeat the marriage-contract by directing that if his son Samuel should die before the age of thirty then the moneys were to go to his appointees.

It is said, however, that Samuel Rogerson homologated and acquiesced in his father's settlement, and in support of this it is averred that he took payment of the income and did not claim the capital after his father's death. His own settlement indicates the view which he and his advisers took as to his rights. It sets forth as follows:—‘And with regard to the succession to the estate of my deceased father John Rogerson, which has already opened to me, but the funds of which I am not entitled to receive until I have reached the age of thirty years, I direct that the same shall be paid over to the said William Rogerson, to whom I bequeath the same.’ The postponement of the payment is here recognised as a legitimate exercise of the power by the father; and Samuel, acting upon this view, took payment of the annual income paid to him by his father's trustees. This, however, cannot be considered as homologation and acquiescence in the distribution of the estate which the father made, in the event, which happened, of Samuel not attaining the age of thirty. If he had a vested interest on the father's death in the property, which the father could not defeat by a testamentary deed, his right or that of his executor to insist upon such right being given effect to would not be barred by the fact that he had taken payment from the trustees of the income given to him.”

The trustees having reclaimed, the Lords adhered.