Scottish Court of Session Decisions

Mrs Jane Lesslie, widow of the late James Lesslie, shipowner, North Shields, died at Bonny toun, Linlithgow, on 9th January 1881, leaving a trust-disposition and settlement, and codicil thereto, whereby she assigned to certain trustees her whole estate.

The third purpose of the settlement was as follows—“I direct my trustees, at the first term of Whitsunday or Martinmas six months after my death, or as soon after such term as my trustees shall be able to realise my estate, to divide the whole rest and residue of my said estates and effects equally between my two daughters Mrs Agnes Lesslie or Jamieson, wife of William Henry Jamieson, farmer, residing at Mayshade aforesaid, and Mrs Jane Lesslie or Dawson, wife of Adam Dawson, residing at Bonnytoun, Linlithgow, share and share alike, and to their respective heirs and assignees; but declaring that the provision hereby made to my said two daughters is an alimentary provision for their own separate use and behoof, and shall not be subject to the jus mariti or right of administration or management of their present husbands, or any future husbands they may marry, nor shall the same be assignable by them or by their said husbands, nor be liable to the deeds or subject to the legal diligence of the creditors, either of themselves or of their said husbands, for payment or in security of debts contracted by them; but my trustees shall be bound to see to the investment of the said residue for my said daughters in such way and manner as shall to them appear best to secure and give effect to the foresaid declarations and conditions, with power to my trustees, notwithstanding what is hereinbefore written, and provided they be required so to do by my said daughters, or either of them, to pay to my said daughters, or either of them, the whole or such part of their respective provisions foresaid as they may request so to be paid to them, leaving my said daughters themselves to see to the application, use, or investment thereof, and without my trustees incurring any responsibility therefor; and I declare that the receipts and all other writings with reference to the said provision, or to the interest or produce thereof, to be granted by my said daughters, shall be granted by themselves alone, and shall be good, valid, and sufficient to the receivers thereof, though the consent of their husband be not given thereto.” By codicil Jane Lesslie revoked that part of the third purpose of the settlement which is printed above in italics.

The trust-estate was realised by the trustees, and the primary purposes of the trust implemented. Mrs Agnes Lesslie or Jamieson and Mrs Jane Lesslie or Dawson, the residuary legatees under the settlement, both had children, who were all in minority.

Questions having arisen as to the rights and interest of the residuary legatees in the residue under the third purpose of the trust-disposition and codicil, a special case was presented by (1) Mrs Jamieson and Mrs Dawson, and (2) the trustees of the late Mrs Lesslie, submitting the following questions of law—“(1) Whether the fee of the residue of the said estate is vested in the said Mrs Agnes Lesslie or Jamieson and Mrs Jane Lesslie or Dawson? (2) Whether they are entitled to have the capital of the said residue conveyed and made over to them, or any, and if so, what part thereof? Or (3) whether the trustees are bound to retain the capital invested in their own names during the lifetime of the said legatees?”

Argued for the first parties—A right in the fee of the residue vested in them as at the date of the death of the testatrix, and they were now entitled to have the same conveyed and made over to them in such a way as to give effect to the declaration and condition of its being for separate use and behoof. They were willing to grant a receipt to the trustees in similar terms to that suggested by the Court in the case of Allan's Trustees v. Allan and Others, December 12, 1872, 11 Macph. 216, which ruled the present case.

Argued for the second parties—They were willing to pay over the residue to the first parties, who probably had the fee, if they could do so with safety, but there was here no direction to pay as in Allan's case, and the conditional power “to pay” had been cancelled by the codicil. In order “to divide” and “to see to the investment” of the residue, so as to protect it for the first parties as the testatrix desired it to be protected, it was necessary to keep up the trust during their lifetime, and only pay to “their respective heirs and assignees”— Balderston v. Fulton, January 23, 1857, 19 D. 293; Lady Massy v. Scott's Trustees, December 5, 1872, 11 Macph. 173; Whyte's Trustees v. Whyte, June 1, 1877, 4 R. 786.

At advising—