Scottish Court of Session Decisions

Major Robert Brown, late of the Madras Army, died on 29th May 1869, survived by three children, James, Robert, and Caroline. He left a trust-disposition and settlement by which he directed his trustees to provide an annuity for his sister, and to accumulate the whole free annual income of the estate until the eldest of his children should attain the age of sixteen years, and to apply it for the education of his children until they should respectively attain the age of twenty-one, and as each attained majority to pay to each their respective equal shares of the income of the trust-estate so accumulated, until the estate should fall for division under the 5th purpose, which was in these terms—“I direct my said trustees, on the youngest of my said children attaining the age of twenty-five years, then to divide to them equal shares of the remainder of my said trust property, but to retain one-half of the said remainder for and on behalf of my said daughter, and, until her marriage or death, to pay to her the free annual income of the said half, and to pay over the other half, share and share alike, to my said sons, and on the marriage or death of my said daughter, then to pay over to my said sons the remaining unpaid portion of their respective equal shares of the remainder of my said trust property, divided to them on the youngest of my said children attaining twenty-five years of age, but hitherto retained on behalf of my said daughter, their sister, but with power to my said trustees, if they see fit, to settle my daughter's portion on her, and excluding all right of her husband therein: Further, it is hereby provided and declared that although I have directed my trustees to divide, and partly to make over payment to my said children on the youngest of them attaining the age of twenty-five years, still, if my trustees shall find that it would injure my property to sell it off at that time, I authorise them to delay payment until a more suitable time in their opinion shall come, until which time each child shall receive the income of that portion of the remainder of the said trust that each child would have received in capital had payment not been delayed; but declaring that the shares of my said children shall vest in them on their respectively attaining the age of twenty-five years, or in their lawful issue alive at the time of their prior death.” These provisions were declared to be in full of all legal claims competent to the children on their father's death.

Miss Caroline Reid Brown, the testator's youngest child, attained the age of twenty-five on 27th May 1889, and she and her two brothers, James C. F. Reid Brown and Robert J. Reid Brown, then requested the trustees to make over the whole trust-estate

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to them on their joint receipt and discharge after provision made for the aforesaid annuity. The trustees declined to do so without judicial authority to that effect.

A special case was accordingly presented by (1) the beneficiaries and (2) the trustees to have the judgment of the Court upon the following questions—“(1) Are the said trustees bound, after making due provision for the payment of the said annuity, and on receiving a joint discharge from the parties of the first part, to make over to them the one-half share of residue which the testator directed his trustees to retain for behoof of his daughter, or any, and if so, what part thereof? or (2) Are the said trustees bound to retain the said half share of residue, or any, and if so, what part thereof, invested in their own names until the marriage or death of Miss Caroline M. F. R. Brown?”

The parties of the first part maintained that the whole estate had vested in them, and the period of division having arrived, that the terms of the deed of settlement entitled them to immediate payment thereof; that these terms conferred on them an absolute right of fee in the said estate, upon their shares of which they were entitled to test, and which fee was not in any way protected against the diligence of creditors or onerous assignees; that no interest postponed to theirs was created by the will, and that although Miss Brown had presently a limited liferent interest in a very small portion of the estate which belonged to her brothers in fee, she and they having arranged amongst themselves to offer a joint discharge, the trustees were not entitled to withhold the funds from them; and that it was inexpedient and disadvantageous to them to keep up the machinery of a trust for the management of so small a fund.

The parties of the second part maintained that upon a sound construction of Major Brown's last will and testament it was their duty, after providing for payment of the said annuity, to retain one-half of the residue of the trust-estate invested in names of the trustees until the marriage or death of Miss Caroline M. F. R. Brown, and meanwhile to pay over to her the free annual income of the share of residue so retained. They further maintained that, in view of the clearly expressed wishes and intentions of the testator, they were not bound to make over the said share of residue to the parties of the first part without judicial authority to that effect.

Authorities— Jamieson v. Lesslie's Trustees, June 19, 1889, 16 R. 807; Christie's Trustees v. Murray's Trustees, July 3, 1889, 16 R. 913; Duthie's Trustees v. Forlong, July 17, 1889, 16 R. 1002; Campbell's Trustees v. Campbell, July 17, 1889, 16 R. 1007.

At advising—