Scottish Court of Session Decisions

The late Harry M'Condach, by last will and testament, dated 23rd April 1859, left his whole estate to trustees, whom he directed to divide the residue of his estate into three equal parts, to invest one of these in their names, and to pay the interest thereof to his daughter Mrs Forbes, “for her aliment and support.” The will then proceeded—“Declaring that if all my said daughter's said children shall have attained majority before my said daughter's death, then that the said principal of said third part, or the balance thereof, shall be uplifted and divided among the said children as aforesaid as soon after my said daughter's death as my trustees or their aforesaids can conveniently uplift and divide the same: Declaring further that if any of my daughter's said children shall die before receiving payment of his or her share respectively, leaving lawful children, then that such children equally between them shall be entitled to their deceased parent's share… . But declaring that if any of my said sister's children shall die before receiving his or her share, leaving no lawful children, then that the share of such child or children so dying shall be equally divisible among such child's or children's surviving brothers and sisters and the lawful children as aforesaid of any of them that may have predeceased.” The balance of the third part amounted to about £148, and the interest had been regularly paid to Mrs Forbes. In 1890 all the five children of Mrs Forbes, and who were all major and sui juris, with the consent and concurrence of their mother brought an action of declarator in the Sheriff Court at Aberdeen against the trustees, David Mitchell and Stodart James Mitchell, advocates in Aberdeen, to have it declared that the pursuers had full right and title to the sum of £148, and to have them ordained to pay it over to the pursuers.

The pursuers averred—“The pursuers' said father and mother are, from old age and infirmity, quite incapable of earning their own livelihood. Their said mother is in ill-health, confined to bed, and requiring medical attendance, and being in straitened circumstances, the income derivable from the balance of residue in defenders' hands is quite inadequate for her support, and the pursuers have been for years back contributing towards her maintenance. The said Mrs Isabella M'Condach or Forbes is anxious to accelerate or anticipate the period of the division of the said balance of residue liferented by her, and with this view has executed in favour of the pursuers a discharge of her right of liferent.”

The pursuers pleaded—“(1) The fee of the sum sued for having vested in the pursuers, and their mother having renounced and discharged her right of liferent in the same, the defenders are bound to denude themselves of the trust, and to make payment as prayed for, with costs.”

The defenders pleaded—“(1) The right to the said share of said residue liferented by

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the said Mrs Forbes as aforesaid does not vest under the said settlement till the date of her death. (3) The pursuers having acquired no vested right to said share have no title to discharge the defenders of the same. Or alternatively, vesting is suspended altogether until actual payment to each beneficiary, at least so far as concerns Mrs Forbes' own children. (4) The provisions in said settlement in favour of the said Mrs Forbes being alimentary, she cannot legally execute a discharge thereof in favour of the pursuers, or renounce her right under said settlement to the same.”

Upon 24th July 1890 the Sheriff-Substitute ( Grierson) sustained the defenders' first plea-in-law, and assoilzied the defenders.

“ Note.—… Mrs Forbes is seventy-three years of age, and bedridden. Her husband is seventy-five. Her children were all born before the testator's death in 1859, and it is argued that as the fee has vested in the pursuers, and as their mother has renounced her right of liferent, the defenders are bound to denude themselves of the trust. I am not of that opinion, for until the period of payment ( i.e., the death of Mrs Forbes) arrives it is impossible to say who are the parties entitled to share in the fund. Accordingly, in my view the shares do not vest until after Mrs Forbes' death. See Young v. Robertson, February 14, 1862, 4 Macph. 314; M'Alpine, &c., March 20, 1883, 10 R. 837; Marshall v. King, October 30, 1888, 16 R. 40. I think this point is so clear that it is unnecessary to consider whether the provision to Mrs Forbes is alimentary, and if so, whether it is in her power to discharge it.”

The pursuers appealed, and argued—They had a vested right, and could give a valid discharge to the trustees. The period of vesting was not postponed merely because the period of payment was deferred. If vesting did not take place a morte testatoris, then it did take place when the youngest of the grandchildren attained the age of twenty-one— M'Alpine, &c., March 20, 1883, 10 R. 837. The survivorship clause did not prevent vesting until the period of payment arrived— Marshall v. King, October 30, 1888, 16 R. 40; Hay's Trustee v. Hay, June 19, 1890, 17 R. 961. The trust appointed by the deed was plainly meant only to pay the liferent, but as the liferentrix was willing to renounce her liferent, and all the parties interested were agreed that the trust-estate should be handed over now, the trust could not be an obstacle. With regard to the question of the renunciation of the liferent, and the case of White's Trustees v. Whyte, June 1, 1877, 4 R. 786, it was enough that in this settlement there was no words stating that the provision was to be alimentary. There was one special interest to be kept up, and that interest could be effectually provided for in some other way. All the parties interested agreed.

Argued for the respondents—There was only a limited power given to the trustees, and the testator intended to protect his daughter from her own acts; that was enough to make the provision alimentary—M'Laren on Wills, &c., 55. It was quite decided that an alimentary provision could not be renounced— White, &c., supra. Vesting was postponed until the death of the liferenter— Muirhead v. Muirhead, May 12, 1890, 27 S.L.R. 917; Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142. Those entitled to succeed upon the death of the liferentrix could not be determined, because the destination was different in the event of any of her children predeceasing her with or without issue.

At advising—