Scottish Court of Session Decisions

James Coltart Waters died at Craigton House, Stirlingshire, On 11th September 1867, leaving a trust-disposition and settlement dated 30th April 1862. He was survived by a widow and three children, Alexander William Dun Waters, Grace G. Waters, and James C. Waters, the eldest of whom had been born in 1863.

By his settlement Mr Waters conveyed his whole estate, heritable and moveable, to trustees for the purposes, in the first place, of payment of his debts and the expenses of the trust; and in the second place, for satisfaction and implement of the provisions in favour of his wife contained in his antenuptial contract of marriage. The third purpose of the trust was in the following terms—“Third, I direct my said trustees, after satisfying the first purpose of this trust, to hold and divide the whole residue of my estate, heritable and moveable, equally for and among any child or children who may be lawfully procreated of my body, and after paying equally from the yearly income of said shares the annuity which may be payable to my widow, to apply the remaining income, or such part thereof as my said trustees may think expedient, towards the maintenance and education of said child or children, and for their use until they respectively attain the age of twenty-five years complete, at which dates I direct my trustees to pay and make over their respective shares so far as not required for payment of said annuity, and upon the death of my widow to pay and make over on their respectively attaining twenty-five years their shares of the investments which may have been retained to meet said annuity: Declaring that the shares of any daughters I may leave, and the interest or produce thereof until they attain the age of twenty-five years, shall he paid to them for their own alimentary use, exclusive of the jus mariti and right of administration of any husbands they may marry, and shall not be assignable by them or subject to their debts or deeds, or to the diligence of creditors; and that the issue of any child predeceasing shall be entitled equally among them to the share of my said estate that would have fallen to the predeceasing parent at the term

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of payment before mentioned had he or she then survived; and I declare the above provisions in favour of children to be in full of all they could claim as legal provisions in consequence of my death; and in the event of my dying without leaving lawful issue, and having left no settlement or directions of later date, I direct my trustees to divide the residue of my estate, and to make over and pay the same in equal shares to and among my nearest of kin.”

Alexander William Dun Waters, the eldest child, died on 22d March 1884, unmarried and intestate. He had been born on April 1863, and thus was not quite twenty-one when he died.

The question then arose whether the one-third of the residue of his father's estate, to payment of which (subject to the widow's annuity) he would have become entitled on attaining twenty—five, had vested in him. This Case was then adjusted. The question was—“Had one-third of the residue of the trust-estate vested in Alexander William Dun Waters at the date of his death?”

The first parties were the trustees under the will of Mr Waters and Grace and James Waters (with their curators). The second party was the widow. The first parties maintained that no part of the trust-estate had vested in A. W. D. Waters, their ground being that the clause in the third purpose conferring a right on the issue of predeceasing children constituted a gift over, and indicated an intention that there should be no vesting until the term of payment. The second party maintained that a right to one-third of the trust-estate vested in each of the testator's children at his death, subject only to the condition that in the event of a child dying leaving issue the share of such child should belong to such issue.

Argued for the first parties—It was no doubt settled that, where payment was postponed merely for the sake of a liferent, vesting took place a morte testatoris, but that was not the present case. Here payment was postponed for a special reason personal to the legatee, namely, his reaching the age of twenty-five, and this might never happen. Dies incertus pro conditione habetur. This was a condition which might never be purified; therefore vesting was postponed. Further, the destination-over to issue of children showed an intention that the child should take no vested right till the term of payment.

Authorities— Lang v. Barclay, July 20, 1865, 3 Macph. 1143; Maxwell v. Wylie, May 25, 1837, 15 S. 1005; Jackson v. M'Millan, March 18, 1876, 3 R. 627; Snell's Trustees v. Morrison, March 20, 1877, 4 R. 709.

Argued for the second party — The general presumption in the circumstances of the case was for vesting a morte testatoris, and this the first parties' agreement failed to displace. Recent decisions had shown a tendency in the Court to favour vesting a morte testatoris in (1) residuary bequests (2) in case of bequests to children, and more particularly when to immediate children, and these were the circumstances of this case. There was no dies incertus here, for if the child survived it must occur—as certainly as death in the case of postponement of payment in favour of a life—rent. The contention of the first parties would create intestacy with regard to one-half of the residue. This was not to be presumed, and could only take place when clearly shown to have been the intention of the testator. The destination—over did not affect the right given to the immediate legatee.

Authorities— Taylor v. Gilbert's Trustees, July 12, 1878, 5 R. (H. of L.) 217; Mackintosh v. Wood, July 5, 1872, 10 Macph. 933; Jackson v. M'Millan ( supra cit.); M'Laren on Wills, ii. 18.

At advising—