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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Henry-Anderson and Others (Johnston's Trustees) v. Johnston and Others [1891] ScotLR 28_634 (13 May 1891)
URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0634.html
Cite as: [1891] ScotLR 28_634, [1891] SLR 28_634
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SCOTTISH_SLR_Court_of_Session
Page: 634↓
Court of Session Inner House Second Division.
v.
Facts:
A truster directed her trustees to pay half of the residue of her estate to her nephew on his attaining the age of twenty-five, and till then to hold it in trust and apply the income or one-half of the capital for his behoof. On his death before attaining that age without issue, his share was to go to the truster's brother and his children, to whom also the other half of her estate was to be conveyed on her death. By codicil the truster revoked the provisions in favour of her brother and his children, and with regard to the share of the residue in which they were interested under the settlement declared, “in the event of my death before executing a new settlement, such residue will be disposed of among those of my relatives according to their legal rights.” Her heirs in mobilibus at the date of her death were her brother and nephew.
Held that the nephew's share vested a morte testatoris, and that the other half of the residue fell to be equally divided between the truster's brother and nephew.
Miss Margaret Johnston of Welton, Blairgowrie, died in Edinburgh on 14th July 1890. Her heirs in mobilibus at her death were her brother James Johnston and her nephew William Low Johnston. She left a trust-disposition and settlement by which she directed her trustees to convert her whole estate into money, and hold, apply,
Page: 635↓
and dispose of it in the following manner:—“One-half of the free rest and residue of my estate to my said nephew William Low Johnston, payable on his attaining the full and complete age of twenty-five years, but until he attains that age my trustees shall hold the capital in trust, and apply in such sums and in such way as they deem most expedient the annual interest, or a part thereof, for his maintenance and upbringing, but with power to said trustees, if they think proper, to advance to the said William Low Johnston, prior to his attaining said age, a part of the capital, not exceeding one-half, in starting him in business, or otherwise starting him in life, but which discretion will lie wholly with my said trustees, whom I hereby appoint to be tutors and curators to him until he attain said age of twenty-five years complete; but declaring, in the event of the said William Low Johnston dying without leaving lawful issue of his body before attaining the said age, his said share of my estate shall fall to the parties after named, being the children of my brother James Johnston, and the said James Johnston, and shall be divided among them in the same proportions as their own share is to be divided as hereinafter set forth, and the remaining half of said residue shall be held, applied, and disposed of by my said trustees to and for behoof of the children of my said brother James Johnston, and to himself, in the proportions following.” Upon 2nd July 1889 she executed this codicil—“I, the said Miss Margaret Johnston before designed, being about to depart to Denmark for a time, and not having time to make a new settlement of my affairs before leaving, but being desirous to alter some of the provisions in the foregoing trust-disposition and settlement, hereby cancel and annul the whole provisions therein contained in favour of my brother James Johnston, and also of his children nominatim in the said deed above written, and in lieu thereof I leave to the said James Johnston a sum of £100 sterling in full of all he can claim, and in the event of his challenging this codicil, this bequest of £100 will be held as null and void; and with regard to the residue of my estate, so far as the said James Johnston and his children were interested under the said trust-disposition and settlement, in the event of my death before executing a new settlement, such residue will be disposed of amongst those of my relatives according to their legal rights.”
No other settlement of her affairs was ever made.
The trustees on her death accepted office, and entered upon the administration of the trust-estates, but in the meantime they did not accept the office of tutors and curators to William Low Johnston.
In these circumstances a special case was presented by (1) the trustees and executors under Miss Margaret Johnston's will; (2) James Johnston, her brother; (3) William Low Johnston, her nephew, and his mother Mrs Agnes Sutherland or Johnston, for the opinion of the Court on these questions—“(1) Did the half of the residue bequeathed to William Low Johnston by the said trust-disposition and settlement vest in him a morte testatoris? Or was vesting of the said half of residue postponed till William Low Johnston attained the age of twenty-five? (2) Does the other half of the residue fall to be equally divided between James Johnston and William Low Johnston? Or does it belong exclusively to James Johnston? Or does it belong exclusively to William Low Johnston?”
At advising—
The first question we are asked to consider is, whether the one-half of the estate which has been admittedly left to William Low Johnston vested in him a morte testatoris, or whether it does not vest until he has reached the age of twenty-five? It was conceded on his behalf that if the settlement had stood as it was originally executed, vesting could not have taken place a morte testatoris, on account of the destination-over to his uncle James Johnston and his children. It appears, however, to me that the codicil, whatever else it may do, certainly takes that clause of destination-over out of the will and leaves the conveyance of that part of her estate as if it had been a simple bequest to William Low Johnstone. I am therefore of opinion that we should answer the first half of the first question in the affirmative.
Then there arises the second question as to the mode of disposing of the other half of her estate which by the original trust-disposition and settlement she had given to James Johnston and his children. There is no doubt that the cancelling of the bequest to James Johnston by the codicil put an end to the disposition in his favour in the original trust-deed. Miss Johnston had plainly the intention to make another will although she never did so. Having that intention she dealt with the matter thus in the codicil—“And with regard to the residue of my estate so far as the said James Johnston and his family were interested under the said trust-disposition and settlement, in the event of my death before executing a new settlement such residue will be disposed of among those of my relatives according to their legal
Page: 636↓
The Court were of opinion that the first and second questions stated in the special case fell to be answered in the affirmative.
Counsel for the First and Second Parties— D.-F. Balfour, Q.C. Agents— Watt & Anderson, S.S.C.
Counsel for the Third Party— Jameson— Ure. Agents— James Russell, S.S.C.