Scottish Court of Session Decisions

Alexander M'Farlane died on 22nd October 1857, leaving a trust-disposition and settlement dated 3rd March 1847 by which he conveyed his whole estate to trustees for the following purposes:—(1) For payment of his debts, deathbed and funeral expenses, and the expense of the trust; (2) for payment and implement to his wife, in the event of her surviving him, of the provisions to which she was entitled under her contract of marriage; and (3) the trustees were to hold the whole remainder of his said means and estate for behoof of his children, and the survivors and survivor of them, equally among them share and share alike; and it was declared that till the final division of his estate, his trustees, after satisfying his wife's claims, should either pay to his children their shares of the remainder of the annual proceeds of his estate, or expend the same for their behoof or the behoof of any of them, with power to the trustees to expend on the education and maintenance of such of his children as might not be able to maintain themselves, a part or the whole of the annual proceeds of the shares of his children who might be able to maintain themselves. Then followed this declaration And upon the death of both me and my said wife, my said trustees and their aforesaids shall, upon my youngest child attaining the age of forty years, divide my whole means and estate among those of my children who shall be then alive, and the children of any who may have died, such children succeeding per stirpes, and such division may be carried into effect either by a conveyance of a share of the property, or by a payment of money, or partly by both, as my said trustees may consider proper; and if any of my children shall die before receiving implement of their claims under these presents, leaving lawful issue, such issue shall be entitled to the share to which their parent would have succeeded if in life, and if more than one, in such proportions as such parent may have directed by a writing under his or her hand, and failing such writing, share and share alike: Declaring that the provisions under these presents to my children shall not vest in them till actual payment and conveyance, and if any one or more of my children shall die before receiving payment or conveyance of their share, and without leaving issue, such share shall be divided among my surviving children and the issue of deceasers, in the same manner and under the same conditions and restrictions as the shares originally hereby provided to them.” The estate left by the testator consisted almost entirely of certain heritable property in Crown Street and Govan Street, Hutchesontown, Glasgow.

The testator was survived by several children, and in 1878 the trustees nominated under the settlement being all dead, these children were appointed trustees by Act and Decree of the Lords of Council and Session.

John M'Farlane, the testator's youngest child, attained the age of 40 years on 4th December 1887, at which date the truster's wife was dead. He died on 25th May 1888, leaving a trust-disposition and settlement, date 22nd September 1887, whereby he conveyed and made over to Eliza Macdougall his whole means and estate, including his whole right and interest present and future in certain heritable subjects in Crown Street and Govan Street, Glasgow, which formed the most important part of the estate left by the deceased Alexander M'Farlane, and he appointed Eliza Macdougall his sole executrix. At the time John M'Far-farlane attained the age of forty several of the trustees and beneficiaries under his father's settlement were resident abroad.

Eliza Macdougall having been duly confirmed as executrix under the settlement of John M'Farlane, raised this action against

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Alexander M'Farlane's testamentary trustees to have it declared that John M'Farlane had at the time of his death a vested interest in his father's estate, and for payment of his share of that estate.

The pursuer averred—“There was nothing to prevent the trustees from dividing the trust-estate, and paying and conveying the same in terms of the said trust-disposition in the said month of January 1888, or at any time thereafter, and they ought to have done so. The delay which took place was quite unjustifiable and unreasonable.”

The pursuer pleaded—“(1) The pursuer, being in right of the said deceased John M'Farlane's share and interest in the trust-estate of the said deceased Alexander M'Farlane, in respect the same vested in him before his death and was carried to the pursuer by his disposition and settlement, is entitled to decree of declarator as concluded for.

Upon 15th November 1889 the Lord Ordinary pronounced this interlocutor:—“Finds that at the date of his death on 25th May 1888 the deceased John M'Farlane had no vested right and interest in the trust—estate of his father Alexander M'Farlane: Therefore sustains the third and fourth pleas-in-law for the defenders: Assoilzies the defenders from the conclusions of the summons, and decerns.”

“ Opinion.—The truster's direction as to the ultimate division of his estate was that it should take place upon the death of himself and his wife, and upon his youngest child attaining the age of forty years. It was declared, however, that the provisions in favour of the truster's children should not vest in them till ‘actual payment and conveyance.’ It is further provided that if any of the children should die ‘before receiving implement of their claims,’ leaving lawful issue, such issue should be entitled to the share to which the parent would have succeeded if in life, and that if any of the children should die ‘before receiving payment or conveyance of their shares,’ and without leaving issue, such shares should be divided among the truster's surviving children and the issue of the predeceasers.

John M'Farlane, the truster's youngest child, attained the age of forty years on 4th December 1887. He died on 25th May 1888 without receiving payment or conveyance of his share.

The first question is, what is the meaning of the words used in the vesting clause? Do they mean what they say, viz.—that the shares shall not vest until actual payment and conveyance, or do they mean simply that the shares shall not vest until the time when they are directed to be paid or conveyed? On this point I do not think that there can be the slightest doubt that the words must be given their natural interpretation. If the truster had intended that vesting should take place at the period fixed for division of his estate it would have been easy for him to have said so, but it is clear from the wording of the clause, and also from the language used in the other passages to which I have referred, that what he had in view was the actual receipt or conveyance of the shares, and not the time fixed for division of the estate. Reference may be made to the cases of Howat's Trustees v. Howat, December 17, 1869, 8 Macph. 337, and Johnston v. Crook, June 1879, L.R., 12 Ch. Div. 639, and the opinion of the Master of the Rolls, Sir George Jessel.

The only other question is whether there is room for the application of the equitable maxim, quod fieri debet infectum valet. I think there is not. John M'Farlane died only five months after the time fixed for division, and I do not think that it can be said that there was any unreasonable delay. Even if there was, John M'Farlane, who was a trustee, was as much to blame for it as anyone. It is said that the trustees should have been ready to divide whenever the period of division arrived. I do not think so. Until John M'Farlane attained the age of forty years it could not be certain who or how many would be the parties who would ultimately be entitled to payment or conveyance, and therefore it would have been useless to decide by anticipation whether the subjects should be sold or divided among the beneficiaries. The case is a somewhat hard one, but I feel that I have no alternative but to decide it as I have done.”

The pursuer reclaimed, and argued—This case was not ruled by that of Howat's Trustees. In that case a much greater latitude was given to the trustees as to the time when they might realise the estate. Here the date of payment must be taken to mean the period when the youngest child reached forty, and must not be held to be dependent upon the activity or inactivity of the trustees— Leighton v. Leighton, March. 8, 1867, 5 Macph. 561; Howat's Trustees v. Howat, December 17, 1869, 8 Macph. 337.

The defenders argued — This case was ruled by Howat's Trustees, where the words of the settlement under construction were almost precisely the same as here. No doubt if the term of payment was only postponed in order that a third party might enjoy the benefit of a liferent, vesting might take place, and the want of zeal or activity of the trustees could not affect the payment of a share that had vested— Popham's Trustees v. Parker's Executors, May 24, 1883, 10 R. 888. The present was not, however, a case of that kind. Further there had been no undue delay in realising the estate.

At advising—