Scottish Court of Session Decisions

The late Henry Lawson, carriage-hirer, Glasgow, died upon 1st September 1867, leaving a trust-disposition and settlement, dated 25th July 1861, by which he conveyed his whole estate heritable and moveable to trustees.

The purposes of the trust were, inter alia, as follows—“In the second place, I ordain my said trustees or trustee to realise my whole estate, and convert the same into money, and that in such manner and at such time or times, either by public roup or private sale, as they may deem most prudent; and … thirdly, after my said trustees or trustee have so converted my estate into cash, I appoint and ordain them or him to divide the proceeds thereof … into three parts, and with two-thirds of the whole … they or he shall either lay out and invest the same on heritable security or in Government stock, and pay the proceeds thereof to my sisters (Margaret Law-son and Jane Lawson) equally share and share alike; or if my said trustees should think it more advisable I authorise them or him to purchase with the said two-thirds of my said estate, from some respectable insurance company or society, an annuity payable to my said two sisters equally during all the days and years of their lives, but payable to them exclusive of the jus mariti and right of administration of any husbands which they may marry, as I intend the same to be a provision for their own more comfortable support, and it shall not be assignable by them, and in the event of the death of any of them then the said annuity shall be payable in the same manner to the survivor.”

The trustees were directed to invest the remaining third for another purpose. The truster was survived by his two sisters, and by a brother William Lawson.

The trustees having realised the estate paid the revenue of two-thirds thereof to the said Margaret and Jane Lawson until Margaret's death on 21st April 1872. They thereafter paid the whole revenue to Jane. By general disposition and settlement dated 18th April 1872, Margaret conveyed her whole estate to Jane. A special case was presented by the said Henry Lawson's trustees of the first part, the said Jane Lawson of the second part, and the representatives of the said William Lawson, who died intestate on 12th July 1872, of the third, fourth, and fifth part, to have it determined “(1) whether the fee of the first mentioned two-thirds of the residue of the estate is conveyed by the trust-disposition and settlement of the said Henry Law-son? (2) In the event of the first question being answered in the affirmative, is the second party entitled to receive payment of said two-thirds either in her own right under the said trust-disposition and settlement of the said Henry Lawson, as the survivor of Margaret Lawson, or one-third in her own right and one-third as disponee of Margaret Lawson? Or are the first parties bound to retain the capital of the said two-thirds during the lifetime of the second party, so as to effectually secure her liferent?”

Argued for the first parties—They had no interest in the succession, but they thought vesting would not take place until the death of the liferentrix Jane Lawson.

Argued for the second party—The fee of the two-thirds of the estate was conveyed by the trust-disposition and settlement of Henry Lawson, and she was entitled to present payment thereof. The testator evidently intended to dispose of his whole estate; where there were indications of such an intention words conferring the liferent might be read as including the fee — M'Laren on Wills, i. 334; Sanderson's Executors v. Kerr, December 21, 1860, 23 D. 227. The trustees were empowered to expend the whole two-thirds upon an annuity. If that had been done the annuitants could have realised their annuities. They were not declared to be alimentary. There was no machinery here for keeping up a trust— Tod v. Tod's Trustees, March 18, 1871, 9 Macph. 728; White's Trustees v. Whyte, June 1, 1877, 4 R. 786; Jamieson v. Lesslie's Trustees, May 28, 1889, 16 R. 807; Clouston's Trustees v. Bulloch, July 5, 1889, 16 R. 937.

Argued for the third, fourth, and fifth parties—The fee of the two-thirds was not conveyed by the settlement, but fell to be retained by the first parties, and the proceeds paid annually to the second party till her death, in which event the capital would be divisible among the deceased's heirs ab intestato as at the date of his death or their representatives. The whole intention of the deed was to give an alimentary provision to the sisters, and no fee— Sprot v. Pennycoolc, June 12, 1855, 17 D. 840; Alves, &c. v. Alves, &c., March 8, 1861, 23 D. 712; Duthie's Trustee v. Kinloch, &c., June 5, 1878, 5 R. 858. Further, it was in the trustee's discretion to limit the second party's right to a liferent— Burnside v. Smith, &c., June 10, 1829, 7 Sh. 735. This they had done. The only time when the trustees

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could have exercised their option of purchasing an annuity was at the truster's death.

At advising—