Scottish Court of Session Decisions

Alexander Falconar of Falconhall died on 10th December 1847, predeceased by his wife and all his sons unmarried, and survived by his five daughters, who were all then above 25 years of age. Of these Mrs Jessy Pigou Falconar or Craigie had married before her father's death, and never had children, and the other four were never married. He executed a trust-disposition and settlement, dated 15th May 1820, by which he left his whole estate to trustees. These trustees were four persons named and his children, who were to become trustees as they respectively reached 25 years of age, but upon the youngest of his children attaining the age of 21 the five trustees, who were not of his family, were to cease to act unless unanimously requested by his family to continue in office.

The purposes of the trust were, first, payment of the truster's debts, funeral expenses, legacies, and expenses of trust management; secondly, payment of certain specific legacies; thirdly, delivery of certain ornaments to his wife, and that she should have the use for her life of the “household furniture, silver plate, goods and plenishing, together with such parts of my wines and liquors, carriages, horses and cattle as she may wish to have for the use of herself and our children living in family with her … and after her death (my trustees) shall deliver over the same to those of my children who shall continue to live in family together, to be possessed and enjoyed by them so long as any two or more of them shall continue so to live after majority, but no longer.” The fourth purpose provided for his heritable estate, including Falconhall, going to his sons according to seniority, but in case of the failure of all his sons and their lawful issue, the trustees were to “convert the same and whole proceeds thereof into part of my moveable and personal means and estate, to be invested and divided among my daughters and others in manner hereinafter directed.”

The fifth purpose gave the classes of investments preferred by the truster, and provided that the “investments shall form an accumulating fund or capital to be added to my means and estate, and to be disposed of as hereinafter directed.”

The sixth purpose was in these terms—“The whole free amount and residue of my said personal means, estate, and effects, and debts, real as well as personal, together with the free annual proceeds and income of my real estate, until the majority of my eldest son or other person entitled to succeed thereto, but always after deduction as above specified, and also all increase and accumulation of my said means and estate, to be made as above directed, shall be held by my said trustees in trust for the equal use and behoof of all of my sons above named, and of all my daughters, Margaret Jane, Caroline, Louisa Maria, Jesse Pigou, and Charlotte Octavia, and of any other child or children, whether sons or daughters, to be born to me in my lifetime or in due time afterwards, who shall survive me, and the respective heirs of their bodies, and, failing any of my said children without lawful issue, of the survivors and survivor of them and their lawful issue respectively; to whom I hereby give and bequeath the same in equal portions, and share and share alike, the lawful issue of each child respectively having collectively right to their parent's share; but subject always to the uses, control, and disposal hereinafter directed, and declaring that the said shares shall not become vested interests in my children respectively until their respective majorities or marriages.”

In the seventh purpose the truster expressed his earnest wish that his wife and his children should continue to live together in family as long as possible, until the marriage of his daughters or the prospects of his sons made that impossible, and he directed his trustees to pay £1500 a-year for the maintenance of the family, with power to make temporary additions if found necessary.

By the eighth purpose power was given to pay to any of the sons separately his share of the foresaid annual revenue of £1500, or if thought advisable, to advance and pay to him, if 21, “one-half of his share of the capital of my means and estate,” or even. “the whole of his said share” upon his reaching the age of 25.

By the ninth purpose it was provided that “in like manner, in the event of the marriage of any of my daughters, with the approbation and sanction of their relations, and of my trustees and executors (without which I hope they will never enter into the conjugal state), I hereby direct and appoint that my trustees shall make payment to her separately, by the equal moieties and at the terms above written, of her equal share of the said yearly revenue during all the years and days of her natural life after her marriage, for her sole and exclusive use and benefit, excluding the jus mariti and all the other rights, legal and conventional, of her husband…. Should, therefore, my said trustees be either unanimously of opinion one year after her marriage or then decide by the aforesaid majority of voices or votes that it would be suitable, proper, and advisable to remove the above restriction in regard to the jus mariti; and further that it would be proper to advance to her or her husband in her name and behalf, any part as far as a moiety of her share of the capital of my said means and estate, they are hereby empowered and directed to make such advance accordingly, the lawful interest of any such partial advance being ever after deducted from her share of the foresaid yearly revenue: And I further authorise and empower my said trustees, with the concurrence and approbation of my said daughter, to enable her by their consent, or after the expiration of

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the fifth year of her marriage, to settle and destine her fail share of the said capital upon herself and her husband, and the issue of the marriage, in such manner and in such terms as my said trustees or the aforesaid majority shall approve.”

By the tenth purpose, if any daughter married without the consent and approbation of the trustees no payment of capital was to be made to her, but the trustees were to retain it in trust for her issue; “and failing such daughter and her lawful issue, then her share of said capital shall belong and be payable to my surviving children and the respective heirs of their bodies in manner above provided.”

The eleventh purpose provided for the case (which did not occur) of the truster dying leaving minor children.

The twelfth and last purpose and certain general provisions were expressed in these words—“ Twelfthly, Whatever part of their shares of the capital of my means and estate shall not have been advanced and paid in their lifetime to or for the use and behoof of any of my children who shall die leaving lawful issue, the same shall be disposed of and paid to and for the use and behoof of such issue equally, and share and share alike their respective proportions of the free yearly interest or income being applied towards their maintenance, education, and support during their respective minorities, and their proportions of the capital being payable to them respectively at the first term of Whitsunday or Martinmas after their respective majorities or marriages, with lawful interest thereafter until paid, and in the event of the failure of all my children and their lawful issue during the life of my said beloved wife, Eliza, my said trustees shall pay and deliver over to her in absolute property one equal moiety of my whole means and estate, debts and effects, real and personal, and whole interest and proceeds thereof, and pay and deliver over the other half to my own nearest heirs, executors, or assignees whomsoever; and failing of all my children and their lawful issue after the decease of my said beloved wife, my said trustees shall pay and deliver over the whole of my said estate, means, debts, and effects, real and personal, and whole interest and proceeds to my said nearest heirs, executors, or assignees.”

The five daughters who survived the truster being all above twenty-five years of age, and therefore the only parties entitled absolutely to the office of trustees under the destination in the trust-disposition and settlement, and as being also the sole parties beneficiaries entitled to receive the residue of the estate after paying off all debts and legacies forming claims against the estate, dealt with the estate as having vested in them equally. They made up their title as heirsportioners pro indiviso to Falconhall, being of opinion that their father would in the circumstances have desired them to keep that as their family home. They also executed various family settlements that no difficulties might occur in the future.

By the predecease of their sisters, Miss Margaret Jane Falconar and Mrs Craigie became vested with and in possession of the whole means and estate left by their father, in so far as not expended by them or their sisters, and upon 19th November 1873 they executed separate general dispositions of their respective whole means and estate in similar terms in favour of Harry Cheyne, W.S., Edinburgh, and others, as trustees, and a mutual deed of directions for the disposal of said estates.

Codicils were added at different dates, and Mrs Craigie died on 12th March 1875.

By a codicil of Miss Falconar dated 16th May 1876, Mr R. L. Stuart, W.S., was appointed a trustee and executor under her settlement along with Mr Cheyne, the other trustees having died, and Mr Cheyne was requested to assume Mr Stuart as a trustee under Mrs Craigie's trust.

Miss Falconar died upon 1st September 1887.

Mrs Irving Smith, widow of Charles Irving Smith, presently residing at Stourbridge, Worcester, and others, claimed to succeed to Alexander Falconar's estates as “nearest heirs,” under the destination contained in the twelfth purpose of the trust-deed, on the ground that his estates had never vested in his daughters, and they had consequently no power to test upon them.

Messrs Cheyne and Stuart as trustees in the estate of Miss M. J. Falconar, and Mr Cheyne as trustee in the estate of Mrs Craigie, raised an action of multiplepoinding to have the right of all parties determined, and they with the approval of, and by arrangement with the beneficiaries under the various deeds forming the settlements of Mrs Craigie and Miss Falconar, claimed “to be ranked and preferred to the whole fund in medio, in order that they may administer the same as the estate of the said Mrs Jessy Figou Falconar or Craigie, and Miss Margaret Jane Falconar under the settlements of these ladies and the various codicils thereto.”…

Mrs Irving Smith and others claimed the whole fund in medio as above, and alternatively as beneficiaries under said settlements.

It was admitted that the important question which should be first decided was that of vesting or no vesting, and that the question as to who were the “nearest heirs” should be left over.

The Lord Ordinary ( Kinnear) pronounced the following interlocutor:—“Finds that under the settlement of the late Alexander Falconar, the interests of his children who survived him vested in them by survivance of the testator, and therefore sustains the claim for the real raisers in its first alternative, and repels the claims of the other claimants with the exception of the alternative claim of Mrs Irving Smith, Mrs Wilkie, and Mrs Sutherland: Ranks and prefers the real raisers accordingly to the whole fund in medio and decerns: Finds the whole parties entitled to their expenses out of the fund in medio, and remits the accounts thereof when lodged to the Auditor to tax and report: Grants leave to reclaim.

“ Opinion.—The question in this case is whether the children of the late Mr Falconar had a vested right in the entire estate bequeathed to them by his will, or whether in the events which have happened, their interest was restricted to the income enjoyed by them during their lives, and to such parts of the capital as might have been actually paid over to any of them by the trustees in conformity with the directions of the truster.

The leading provision is contained in the sixth purpose of the trust, by which the testator

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directs that the residue of the whole estate, real or personal, ‘shall be held by my said trustees in trust for the equal use and behoof of all my sons above named, and of all my daughters Margaret Jane, Caroline, Louisa Maria, Jesse Pigou, and Charlotte Octavia, and of any other child or children whether sons or daughters to be born to me in my lifetime or in due time afterwards, who shall survive me, and the respective heirs of their bodies, and failing any of my said children without lawful issue respectively, to whom I hereby give and bequeath the same in equal portions and share and share alike, the lawful issue of each child respectively having collectively right to their parent's share, but subject always to the uses, control, and disposal hereinafter directed, and declaring that the said shares shall not become vested interests in my children respectively until their respective majorities or marriages.’

The meaning of this provision does not appear to me to be doubtful. The estate is bequeathed to the children who shall survive the testator and their issue subject only to certain directions, for which the truster refers to the subsequent clauses of the deed as to the use, control, and disposal of their respective shares, and with a declaration as to vesting, which prima facie would appear to imply that the interest of each child is to vest at majority or marriage.

The question therefore comes to be, whether there is anything in the subsequent directions to modify or displace the construction which must otherwise have been put upon the words of this leading provision. In reading these directions I think it is very material to observe that the main object and design which the testator appears to have had in view in framing them is that which he expresses in the seventh clause of the deed as his ‘earnest wish and desire,’ viz., that his wife and family after his death, and all his children after their mother's death, should ‘continue to live together in family and in unity, and never separate except in the event of the fortunate marriage of any of the children, the eventful advancement of the sons' in life, or ‘any other contingency in the lot of any of his children which might render his or her continuing to live in family impossible or inexpedient.’ The whole scheme of the trust appears to be framed with reference to this desire of the truster, that his children should live in family together as long as possible; and accordingly the specific directions which are contained in the eight and following clauses are intended to provide first for the joint maintenance of the entire family, and secondly for the settlement and disposal of the shares of those children who may have occasion to separate from the rest. But these directions are by no means exhaustive, and the material point to observe is that none of them are applicable to the events which have happened. The truster contemplates and provides for certain cases in which he thinks it may be expedient to ‘advance and pay’ their shares of capital to his sons, or to settle the shares of the daughters who may marry upon them or their issue. But the event which has happened is that all the sons died before the testator, and that the only daughter who ever married was married during his lifetime. And there is no direction for the disposal or settlement of the shares of unmarried daughters, or of daughters who may have married before the trust came into operation. The consequence would appear to be that in their case there is nothing to qualify or control the bequest contained in the sixth clause. The testator bequeaths his estate to the children who shall survive him, in equal portions, subject to certain directions, for the use, control, and disposal of the estate so bequeathed. But none of these directions have taken effect, because the events which might have brought them into operation have not occurred. It would seem to follow that the bequest in favour of the testator's daughters who survived him must be held to be absolute and unqualified. It may be true that so long as the daughters lived it could not be certainly known that the directions for the settlement of their shares would not come into force. But that is a contingency which will not affect vesting. The effect of the directions is, that in certain cases the trustees would have power to settle the capital of a daughter's share, or a portion of it, upon her issue. But if the capital is bequeathed to her, subject only to such a power of settlement, that will not, according to the more recent decisions, preclude vesting, although subject to a possible defeasance of the right in a certain contingency. The effect in law of a bequest in the terms used by the testator would appear to me to be in accordance with the plain meaning of the words. He gives his estate to his daughters to vest at majority or marriage, subject to being divested in certain events; but he indicates no intention that the right shall be contingent upon the occurrence of these events.

It is said that there is no direction to make any payment to the children, except of certain specified advances; and that there is a destination-over in favour partly of the truster's wife, and partly of his nearest heirs and assignees. But the ultimate destination to the truster's heirs and assignees cannot affect the question of vesting; and the conditional institution of the widow, on the failure of children and their issue, appears to me to be consistent with the vesting of the children's interest at majority or marriage. It is true that the clause as expressed appears to refer to the failure of issue, as a distinct and separate condition from the failure of the children of the truster himself; and therefore to suggest that the children may have married, and yet may have failed to take a vested interest. But the leading provision is in favour of children and their issue, which gives a direct and immediate interest to the issue of children who may have died before the truster leaving issue who should survive him. The case contemplated therefore in the conditional gift to the widow would appear to be the failure of all the children and their issue, without any of them having survived to take a vested interest in terms of the leading provision; and the question of vesting will depend upon the fair construction of that provision. If this be so, the absence of an express direction for payment is not material. If an estate is bequeathed in equal shares to children, with a declaration that the shares shall not vest until majority or marriage, and there is no express direction for payment, no interposed

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interest, and no destination-over, there is nothing to exclude or to postpone vesting, except the declaration that it shall not take place till majority or marriage. And it makes no difference that the gift is subject to restrictions or qualifications, if these are to take effect only on events which may or may not occur, and if these events may be sufficiently provided for by a partial defeasance of a right already vested without keeping the entire right open and contingent.”

The claimants Mrs Irving Smith and others reclaimed, and argued—The Lord Ordinary had only looked at clause 6 because the events contemplated by the succeeding clauses had not happened, but the whole deed must be read to see what was the intention of the testator. His great desire was that his children should continue to live in family together as long as possible and be supported by the liferent of his estate. Clause 6 did not govern the succession. It was only a direction to the trustees to hold for certain persons' equal use and behoof, and “subject always to the uses, controls, and disposal hereinafter directed.” It did not dispose of the fee. That was done by clause 12. The declaration as to vesting in clause 6 was negative merely and the other side had no right to construe it into a positive declaration. The directions to the trustees about advances, and especially the directions in clause 10 not to advance her share of the capital to any daughter who married without their consent and approbation, were meaningless if each child upon attaining majority or marrying obtained a vested interest in a share of the capital. It was clause 12 which must be looked to as regulating the succession. The clause must be held as extending down to the second word “assignees.” It exhaustively dealt with all the three cases that might arise, viz.—(1) Death of children leaving issue (which had not occurred); (2) death of children without leaving issue ( a) during the lifetime of the mother (which had not occurred) and ( b) after the death of the mother (which had occurred). In the case which had occurred it was expressly provided that “my said trustees shall pay and deliver over the whole of my said estate … to my said nearest heirs, executors, or assignees.” The other side and the Lord Ordinary only got over this provision by arbitrarily reading into the clause in two places after the words “failure [and failing] of all my children and their lawful issue” the words “before majority or marriage.” The daughters had only a liferent. There had been no vesting of anything, for no advances had been made. Such advances could only have been made in case of marriages and the only married daughter had been married before her father's death. The ulterior destination to the “nearest heirs” as a class must therefore receive effect. That class was to be ascertained at the death of the last liferentrix— Haldane's Trustees v. Murphy, &c., December 15, 1881, 9 R. 269; Murray, &c. v. Gregory's Trustees, January 21, 1887, 14 R. 368. Even if clause 6 conferred the fee there was divestiture by the terms of clause 12. Lindsay's case relied upon by the other side was not in point, but was in marked contrast. There the Court were anxious not to decide so as to infer repugnancy in the deed in question. Here there was no such danger.

Argued for respondents—The Lord Ordinary's interlocutor was right. Clause 6 was the ruling clause of the deed, and as all the daughters had attained majority and had died without leaving issue, it was the only clause that needed to be considered. All the subsequent clauses were framed to meet contingencies which had not arisen. Clause 12 dealt with the possibility of the trustees having made partial advances to children who had died leaving issue. It concluded at the words “until paid.” The words which followed were general instructions to meet the possibility of there having been no vesting by reason of all the children having died before majority or marriage, and that in the two cases of having predeceased and of having survived their mother. This was a simple case of protected succession in the interests of grandchildren. Clause 6 plainly conferred a fee upon the children on their attaining majority or marrying subject to defeasance in certain circumstances. Controlling words such as those here did not reduce a fee to a liferent. Unless she had a vested interest the provisions in clause 10 restricting the rights of a daughter marrying with the trustee's consent to a liferent were unnecessary— Gibson's Trustees v. Ross, July 12, 1877, 4 R. 1038: Smith v. Chambers' Trustees, November 9, 1877, 5 R. 97, and April 15, 1878, 5 R. (H. of L.) 151; Lindsay's Trustees v. Lindsay, &c., December 14, 1880, 8 R. 281; Popham's Trustees v. Parker's Executors, May 24, 1883, 10 R. 888; Bradford v. Young, July 19, 1884, 11 R. 1135; Peacock's Trustees v. Peacock, March 20, 1885, 12 R. 878.

At advising—