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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Byars' Trustees v. Hay and Another [1887] ScotLR 24_728 (19 July 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0728.html
Cite as: [1887] SLR 24_728, [1887] ScotLR 24_728
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SCOTTISH_SLR_Court_of_Session
Page: 728↓
Court of Session Inner House Second Division.
v.
Facts:
By his trust-disposition and settlement a testator directed his trustees to retain a share of residue, and invest the same in their own names for behoof of the children, who were named, of his brother, “equally between and among them in liferent, and their lawful issues, born and to be born, equally among them in fee.” In the event of the death of the parent payment of the fee was not to be made until the youngest child attained majority. There was a declaration that in the event of any of the children “dying before the period fixed for division of their shares respectively leaving
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lawful issue, such issue shall come in place of the parent, and take and receive what the parent would have been entitled to if then in life.” Held that the shares vested a morte testatoris.
James Byars of Cherrybank, Forfar, died there, unmarried, on 8th April 1867, leaving a trust-disposition and settlement dated 28th January and registered in the Books of Council and Session 15th April 1867. By this deed he directed the trustees therein appointed to realise after his death all his estate, heritable and moveable, and after paying his debts to divide the free residue into two equal shares—“One share thereof to be retained by my said trustees and invested by them in their own names for behoof of the children of my said brother Andrew Byars, viz., Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, equally between and among them in liferent, and their lawful issues, born and to be born, equally among them in fee, and that per stirpes and not per capita, the half of my estate being thus destined or divided into four equal shares, one whereof shall descend to the said Robert Byars in liferent and his lawful issue in fee, another to the said David Byars in life-rent and his lawful issue in fee, another to the said Jessie Byars or Simpson in liferent and her lawful issue in fee, and the remaining share to the said Margaret Byars or Hay in liferent and her lawful issue in fee:… Declaring, as it is hereby provided and declared, with reference to the share or half of my said estate destined to the children of my said brother Andrew Byars in liferent, and to their lawful issues equally among them in fee as aforesaid, that in the event of any of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, dying before his or her youngest child attaining the age of twenty-one years, the shares of the half of my said estate respectively liferented by the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, shall not be payable to their children, to whom they are destined in fee, until the youngest lawful child of any of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, so dying shall have attained the age of twenty-one years, but on the youngest child of the family of any of them so dying, attaining that age, my said trustees shall be bound to pay to and amongst that family the share above provided to them:… And in the event of any of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, dying before the youngest of his or her family attaining the age of twenty-one years complete, then I authorise and empower my said trustees to pay or disburse for the board, education, and maintenance of such family such sum or sums of money as they, my said trustees, may think proper, out of the interest, revenue, and profits, arising from the share destined in fee for that family, with power also to my said trustees to advance to any of the members of such family, out of the principal of the share falling to such family, such sums of money to account of his or her share of my means and estate as my trustees may resolve upon for their education and maintenance, or for forwarding them in business or otherwise advancing their prospects in life, and that before the period appointed for division; and with regard to any surplus or reversion of the interests, revenues, and profits arising upon each of the said shares after deduction of all expenses and necessary outgoings in connection with the same, and all payments made therefrom in terms of this deed, I direct and appoint that the same be accumulated along with the principal sum or share, and divided in the same way and manner as the said share itself.… Declaring further, as it is hereby further provided and declared, that in the event of any of the children of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, dying before the said period fixed for division of their shares respectively leaving lawful issue, such issue shall come in place of the parent, and take and receive what the parent would have been entitled to if then in life.”
Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, all survived the testator. Mrs Margaret Byars or Hay, the youngest niece of the testator, had by her first marriage one child, Jane Byars Hay, born 17th May 1866. After the death of her first husband she married Charles Keith, and by him had two children, Robert Wilson Keith and James Simpson Keith, both of whom died in infancy, although one of them survived her for about two months. She died on 11th November 1877. Jane Byars Hay attained the age of twenty-one on 17th May 1887, at which time the period of payment of the legacy arrived. The total amount of the share falling to the issue of Margaret Byars or Hay was at that time £830, 18s.
This was a Special Case to decide who was entitled to payment of that legacy. James Byars' trustees were the parties of the first part; Jane Byars Hay was the party of the second part; and Charles Keith, her stepfather, was the party of the third part.
The second party maintained that no right or interest under the said trust-disposition and settlement vested in her or the other children of the said Mrs Margaret Byars or Hay until the period of distribution mentioned in the deed, viz., when the youngest child of the said Margaret Byars or Hay attained the age of twenty-one years, and that her brothers-uterine, the said Robert Wilson Keith and James Simpson Keith, having died without issue, she, as the only surviving child of her mother, was entitled to the whole of the said sum of £830, 18s.
The third party maintained that vesting took place in the children of his late wife, Margaret Byars or Hay, a morte testatoris, or at least at the birth of each child, and that one-third share of the one-eighth share of the residue liferented by their mother was vested in each of his twochildren, Robert Wilson Keith and James Simpson Keith, prior to the dates of their respective deaths, and that he, as their father and next-of-kin, was entitled, on being confirmed executor to them, to receive payment of the shares so vested in them respectively.
The questions of law for the opinion of the Court were—“(1) Is the second party entitled to the whole of the said sum of £830, 18s.? Or (2) Is the third party, on confirming as aforesaid, entitled to receive two one-third shares of the said sum of £830, 18s., or any portion thereof?”
Authorities cited by the second
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party— Taylor v. Gilbert's Trustees, November 3, 1877, 5 R. 49— revd. July 12, 1878, 5 R. (H. of L.) 217, and L.R., 3 App. Cas. 1287; Laing v. Barclay, July 20, 1865, 5 Macph. 1143; Waters' Trustees v. Waters, December 6, 1884, 12 R. 253; Pursell v. New-bigging, May 10, 1855, 2 Macq. 275. Authorities cited by the third party— Wilson's Trustees v. Quick, February 28, 1878, 5 R. 697; Jackson v. M'Millan, March 18, 1876, 3 R. 627; Ross' Trustees, December 18, 1884, 12 R. 378; Miller v. Finlay's Trustees, February 25, 1875, 2 R. (H. of L.) 1; Peacock's Trustees v. Peacock, March 20, 1885, 12 R. 878; Lindsay's Trustee v. Lindsay, December 14, 1880, 8 R. 281; Wallace, January 28, 1808, M., voce Clause, App. No. 6; Snell's Trustees v. Morrison, March 20, 1877, 4 R. 709; Fraser v. Fraser's Trustees, November 27, 1883, 11 R. 196.
At advising—
By the clause in the trust-deed with which we have to deal the truster directs that after his death his estate shall be divided into two equal shares, and regarding one share the direction is as follows—“One share thereof to be retained by my said trustees and invested by them in their own names for behoof of the children of my said brother Andrew Byars, viz., Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, equally between and among them in life-rent, and their lawful issues, born or to be born, equally among them in fee, and that per stirpes and not per capita, the half of my estate being thus destined or divided into four equal shares, one whereof shall descend to the said Robert Byars in liferent and his lawful issue in fee, another to the said David Byars in liferent and his lawful issue in fee, another to the said Jessie Byars or Simpson in liferent and her lawful issue in fee, and the remaining share to the said Margaret Byars or Hay in liferent and her lawful issue in fee.” Now, there is thus created in the most distinct manner possible rights of liferent and of fee in Margaret Byars and her children respectively, and of course if there be nothing in the rest of the deed to control this clause there can be no doubt that the issue of Margaret will take a right to the fee a morte testatoris, but it is said that there are certain later clauses in the deed which qualify this right, and show it to have been the intention of the truster to postpone vesting. But I take leave to say with respect to these clauses that they do not postpone the gift—they do not relate to the gift at all—they relate entirely to the period of division or payment. The first of these clauses declares, “as it is hereby provided and declared, with reference to the share or half of my said estate destined to the children of my said brother Andrew Byars in liferent, and to their lawful issues, equally among them, in fee as aforesaid, that in the event of any of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay dying before his or her youngest child attaining the age of twenty-one years, the shares of the half of my said estate respectively liferented by the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay shall not be payable to their children to whom they are destined in fee until the youngest lawful child of any of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay, so dying, shall have attained the age of twenty-one years.” Even here there is no clause providing for any survivorship or destination-over, but there is a clause further on which is said to introduce that element. That clause provides—“In the event of any of the children of the said Robert Byars, David Byars, Jessie Byars or Simpson, and Margaret Byars or Hay dying before the said period fixed for division of their shares respectively, leaving lawful issue, such issue shall come in place of the parent, and take and receive what the parent would have been entitled to if then in life.” That is the clause which creates the only difficulty which this deed presents, and I do not say that it does not occasion some difficulty. But in the first place, as I have said, it is a clause which is applicable to the period of division, and does not affect the words by which the gift is conveyed in the first instance. The words of gift confer an absolute fee on the objects of the gift, and do so at once, and I confess I would require very strong and unequivocal language indeed before I could accept it as detracting from the absolute nature of the gift, and say that not an absolute but only a conditional fee is given. In the second place, I think it has been commonly said with respect to such a clause, which merely substitutes children for their parents, that it has very little effect on the question of vesting, as being merely an expression of what the law itself would imply. In the next place, I should be inclined to say that this clause may possibly be referred to the division of the estate which the testator directed to be made immediately after his death, but if not to that, then that is a clause which provides for the divestiture of the beneficiaries if in point of fact the case happened which made such divestiture necessary. That case does not occur here, and therefore I have no occasion to consider the clause further. I have only to consider it with reference to the question, at what period did the shares vest?
The view therefore which, on the whole, I am inclined to take is this—I find that by a very express clause the fee of the capital is given to certain persons—the children of Margaret Byars—that that fee is given without qualification or condition, and creating as it does a right in these beneficiaries at the moment of the truster's death, I do not see that that right has been taken away or in any way limited by what occurs in the subsequent parts of the deed, so as to make one prefer a later period of vesting to that which is the natural or presumed period of vesting, namely, the death of the truster.
The Court answered the first question in the negative, and the second in the affirmative.
Counsel for the First and Second Parties— Pearson— Law. Agents— Macrae, Flett, & Rennie, W.S.
Counsel for the Third Party— Gloag— Kennedy. Agent— Robert Finlay, S.S.C.