Scottish Court of Session Decisions

By antenuptial contract of marriage executed between David Crawford, writer, Greenock, and Rosina Christian Lee or Crawford, dated 10th June 1828, Mr Crawford bound himself, in the event of his predecease, to provide an annuity of £150 per annum to his widow, and to provide her in household furniture, mourning, &c. He also bound himself to make payment of the sum of £1000 if one, and £1500 if two or more children, to the child or children of the marriage who should be alive at his death. A power of apportionment of this provision was reserved by him, and if this power should not be exercised the money was to be divided among his children equally share and share alike. It was declared that these provisions to the children were to be payable at the first term of Whitsunday or Martinmas after his death, or after their reaching majority or being married, whichever event should first happen after his death, but “shall be subjected to their mother's jointure if the said David Crawford shall not leave sufficient fortune to answer to both.” These provisions were declared to be in full of the legal rights of both widow and children.

Mr Crawford died on 27th October 1861 survived by his wife and by the five children of the marriage. He left a trust-disposition and settlement dated 29th August 1861, by which he conveyed all his estate, heritable and moveable (with the exception of certain property he had already conveyed to his wife) to trustees for the purposes thereof. By the first purpose he provided for payment of debts, &c., by the second he directed the whole residue of his estate to be invested and held for his widow's liferent, and gave her the moveables in his house at the time of his death, which provisions were declared to be in fulfilment of his marriage-contract obligation, and out of love, favour, and affection. By the third purpose of this settlement he directed “that upon the death of the said Mrs Rosina Christian Lee or Crawford, my whole free property and estate shall be divided into seven equal portions or shares, of which one shall be given to each of my three sons, David Rose, James Hunter, and William Patrick, and two shares to each of my daughter Jane Lee, and Hugh John. But if my trustees shall find from the circumstances of the family that my daughter and my youngest son should each have a larger share than the double of their brothers, or William more than David or James, then I fully authorise and empower my said trustees and executors to divide, appoint, and award such larger portion or share to my said daughter and to my youngest sons. But declaring that none of these shares shall vest till they become payable; and I do hereby constitute my said trustees and executors to be the absolute arbiters with regard to this apportionment; and I earnestly express the hope that none of my three elder sons will gainsay or contravene this direction and request of mine,”

The value of the trust estate was about £3210, and the annual income did not exceed £150, the amount of the widow's annuity provided in the marriage-contract. No part of the trust estate was thus available to meet the £1500 provided to the children of the marriage by the marriage-contract, and therefore while the widow survived none of the children received any payment.

David Rose Crawford, the eldest son, died in 1877 in New York. He left five children. His estates had been sequestrated in 1869 and Robert Keith Pringle, W.S., was at the date of this case trustee thereon. James Hunter Crawford, the second eldest son, died unmarried in 1870, domiciled in New Zealand. By his will T. B. Gillies was his executor. William Patrick Crawford, the third son, attained majority in 1862. He died in New Zealand in 1880, intestate, and leaving a widow and five children, all minors. The administrator of his effects was R. C. Hamilton. Jane Lee Crawford, the only daughter, married James Walkinshaw, who predeceased her. She herself died intestate and without issue in 1873. Her moveable estate had passed to her husband jure mariti.

Mrs Crawford died in October 1883, and by her death the estate became divisible. Hugh John Crawford, the youngest child of the marriage, was the only child of the marriage who survived her.

In these circumstances difficulties arose as to the proper division of the trust estate, and the present Special Case was accordingly presented to the Court.

William Ralston Patrick and others, the trustees under the trust-disposition and settlement, were the first parties.

R. K. Pringle, W.S., David Rose Crawford's trustee in bankruptcy, was the second party.

The children of David Rose Crawford were the third parties.

The executor of James Hunter Crawford's will was fourth party.

The administrator of William Patrick Crawford's estate and also his five children were fifth parties.

The executrix of James Walkinshaw, the husband of Jane Lee Crawford, was sixth party.

Hugh John Crawford was seventh party.

The parties of the second, fourth, and sixth parts maintained that in addition to the share of the principal sum of £1500, to which each of the truster's children was entitled under the marriage-contract, they were entitled to receive interest on the same at 5 per cent. from the first term after the truster's death, or in the case of William Patrick Crawford, at least from the first term after he had attained majority thereafter. The parties of the third, fifth, and seventh parts maintained that no interest was due on the marriage-contract provision to children for the period during which the widow received the whole free income of the trust-funds, and that interest was only claimable since the first term after the widow's death, and that at the average rate earned by the trust-investments, which the parties agreed to be 4 per cent. The seventh party further maintained that the truster in his trust-disposition and settlement had exercised the power of division which was reserved by him in the marriage-contract, and that the division of the £1500 should be regulated accordingly.

Page: 789↓

The parties also differed as to their respective rights in the event of any surplus remaining after satisfying the marriage-contract provisions. The seventh party maintained that as he alone survived his mother, at whose death the right to share in the residue vested, he was entitled to receive payment of the free residue, subject to the shares of one-seventh each thereof to which the children of David Rose Crawford and William Patrick Crawford were entitled as coming in room of their deceased parents under the conditio si sine liberis. The parties of the third and fifth parts maintained that the conditio si sine liberis applied in favour of the children of David Rose Crawford and William Patrick Crawford, and that they were entitled to the shares the said David Rose Crawford and William Patrick Crawford would have taken if alive at the date of their mother's death. The parties of the second, fourth, and sixth parts maintained that, with the exception of the two seventh parts given to the seventh party, the truster died intestate as to the residue of his estate, and that the same fell to be divided among the truster's children, or their representatives, as intestate succession. All parties admitted that the seventh party was entitled to two-sevenths of the free residue of the trust estate.

The questions submitted for the opinion and judgment of the Court were—“(1) Has the truster in his trust-disposition and settlement and codicil of 29th and 30th August 1861, exercised the power of division reserved in his antenuptial contract of marriage, dated 10th June 1828? (2) Is interest due on the share of the sum of £1500 falling to each of the truster's children under the marriage-contract from the first term after the truster's death in the case of the children who had then attained majority, and from the time of attaining majority in the case of the other children? Or is interest only due thereon from the first term after the death of the truster's widow? (3) Is the interest due on the said shares in either of the alternatives put in question 2 to be calculated at the rate of 5 per centum per annum, or 4 per centum per annum, or is bank interest only to be allowed? (4) Are the children of David Rose Crawford and William Patrick Crawford entitled each to the one-seventh of the free residue of the trust estate destined to their respective parents? (5) Do the three-seventh shares of the said residue destined in the trust-deed to James Hunter Crawford and Jane Lee Crawford (1st) fall to the seventh party; or (2d) do they fall to be divided equally between the seventh party and the children of David Rose Crawford and William Patrick Crawford per stirpes; or (3d) do they fall to be treated as intestate succession of the truster? Or (6) Does the whole residue other than the two-sevenths destined to the seventh party fall to be treated as intestate succession of the truster.”

The second party argued—I. As to the apportionment— Mr Crawford had not by his settlement exercised his power to apportion. The settlement bore only to deal with “free” property, which itself excluded the obligations whereby he had bound himself in the antenuptial contract. But further (1) the trustees were given a power to alter the alleged apportionment, which excluded the idea of apportioning finally avested fund under a marriage-contract. (2) The shares were not to vest till they became payable. Atestator couldnot exercise a power to divide a vested fund by giving an unvested interest. Nor was it even to be assumed that he intended to do so— Watson v. Marjoribanks, February 17, 1837, 15 Shaw 586; Mackiev. Mackie's Trustees, July 4, 1885, 12 R. 1230. The recent Act as to powers of appointment (37 and 38 Vict. c. 37) applied only to appointments made after its date.

II. On the question of interest—The period at which, according to the conception of the contract, the provisions to children were not only vested but payable was the death of the father, and the children's rights were bought up by him for these provisions. To suit the circumstances of his estate he had exercised his right to make these provisions remain unpaid till the death of another creditor, the widow, whose claims upon him were exactly of the same nature. Interest was therefore due on the debt to the children from the time when it ought properly to have been paid, and it ought to be at 5 per cent. This was a debt falling under the first purpose—payment of debts.

III. It might be conceded that the conditio si sine liberis applied to the shares of residue which D. R. Crawford and W. P. Crawford would have taken if alive at their mother's death. But IV. Under the fifth question as to intestacy—The three shares given by the truster to James Hunter Crawford and Jane. Lee Crawford should go as intestate succession of the truster. Their respective shares lapsed by their having died before the period of division (the mother's death), and they had no issue to take it under the conditio. When property was left in separate shares, and there was no further residuary bequest or destination-over, then any shares that lapsed fell into intestate succession of the truster— Fulton's Trustees v. Fulton, February 6, 1880, 7 R. 566.

The third and fifth parties argued—As to the marriage-contract provision of £1500 no interest is due on the shares of it. [On this point they were stopped.] In respect of the concession by the second party that the conditio applied to the shares of residue bequeathed to D. R. Crawford and Mrs Crawford, and that therefore their children took their shares, they did not require to argue that point against him.

The seventh party argued—Except the one-seventh which, as was now admitted, fell to D. R. Crawford's children, and the one-seventh to W. P. Crawford's children under the conditio, the remainder of the residue fell to him under the settlement. It was not necessary to have recourse to the doctrine of resulting intestacy, which the Court was always unwilling to resort to. On the question of apportionment—The apportionment was good, though it declared the shares not to vest till they were payable. The distinguishing feature of the case was that the money came from the father himself, and it was in his power to deal with it as he chose—See Mackie's Trustees, supra. It might have been otherwise if, as in some of the cases, he had been only a person with a power to appoint money which came from another. In that case, though the point need not be decided, the declaration founded on by the second party might have been held ultra vires.