Scottish Court of Session Decisions

Mrs Mary Rattray or Millar died on 16th May 1889, leaving personal estate to the amount of £1300, and heritable estate to the value of about £470.

By a trust-disposition and settlement she directed her trustees (12th) “To realise and convert my whole estate into money, and divide the free residue equally among the children of my late brother Andrew Rattray, whose widow continues his farm at Porter-size, County Kildare, Ireland, of whom there are nine; the children of my said brother John Rattray, of whom there are ten; and the children of my said brother James Rattray, of whom there are seven, who may survive me; and in the event of any of them dying leaving issue, such issue shall be entitled equally among them to the share which their parent would have received if alive; and in the event of any of the said children dying before payment without leaving issue, the division shall be made as if they had not been born among the survivors jointly with the issue of any who may have died leaving children, such issue always succeeding equally to the share which their parent would have received if alive, the original division to be in as many equal shares as there are children alive, or dead but leaving husband or wife or family, such husband or wife likewise representing the deceased member either in their own right or for their children, and counting as one in the division: With power to my trustees to make such advances as they may deem suitable before the period of distribution (being the complete realisation and scheme of division of my whole estate, which shall be the period of vesting when not otherwise provided) to any of the said children, or to their father or mother respectively for behoof of all the members of a family, jointly, if not stated in the receipt to be for any one in particular, such advances to bear interest at the rate of 5 per cent. per annum, so as to make all equal; but such advances to any one who may die without leaving husband, wife, or family shall be held as vested at the time of payment and be regarded as special legacies, but the share of any one who may be a minor shall be payable on attaining majority, or in the case of females on being married, whichever event shall first happen.”

The truster was survived by the nine children of Andrew Rattray mentioned in the settlement. One of these children, Peter Millar Rattray, died within a year of the testator, viz., on 24th April 1890, unmarried but testate. At the date of his death the trust-estate had been realised with the exception of certain heritable subjects in Dunkeld, and a debenture by a foreign land company which did not mature until 1893. The heritable subjects were sold on 4th April 1890, and the price was received on 15th May 1890.

The truster was also survived by the ten children of John Rattray mentioned in the settlement. Subsequent to the date of the settlement and prior to the date of the truster's death three other children of the same marriage of John Rattray were born, who at the date of the present case were in pupillarity.

The truster was also survived by the seven children of James Rattray referred to in the settlement.

Questions having arisen (1) as to whether Peter Millar Rattray having died upon the complete realisation and division of the whole estate, any share of the residue vested in him, and (2) whether the three children of John Rattray who were born subsequent to the date of the trust-deed were entitled along with their brothers and sisters to share in the residue, the present special case was presented, and the following questions were submitted for the opinion of the Court:—“(1) Did a share of residue vest in the deceased Peter Millar Rattray? (2) Are the said William Rattray, Jane Ann Rattray, and Richard Rattray entitled to participate in the division of residue?

Argued for the beneficiaries of the deceased Peter Millar Rattray—This was an estate easy of realisation, and six months was ample time for the trustees to have realised and divided it among the beneficiaries. This was a case in which the Court upon equitable grounds would presume that to have been done which ought to have been done. The heritage was actually sold before Peter's death, and, though the price was not paid until May, yet it was fixed, and could have been entered in any scheme of division— Maclean's Trustees v. Maclean, July 19, 1889, 16 R. 1095. In the circumstances upon equitable grounds the Court would hold that Peter's share had vested. On the second question — As the children were born prior to the death of the testatrix, if she had desired the three youngest to participate, she could easily have said so, and in the absence of any such direction the share of residue must be restricted to the ten— Shearer, 4 Brown's Chan. Rep. 54; Theobald on Wills, 228; Bryce's Trustees, March 2, 1878, 5 R. 722.

Argued for the children of John Rattray — Looking to the nature of the estate, there was no undue delay in the realisation of the property. The period of vesting was

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clearly indicated by the testatrix, and could not be anticipated; the case was ruled by Howat's Trustees v. Howat, Dec. 17, 1869, 8 Macph. 337, and Macdougall v. Macfarlane's Trustees, May 16, 1890, 17 R. 761. On the second question—The words “of whom there are ten” were demonstrative, not taxative. The bequest was to the children of John, and the power of making advances to the parents showed that the bequest was to the whole children— Bogle, Hume, 274; Wood v. Wood, January 18, 1861, 23 D. 338; Ross v. Dunlcp, May 31, 1878, 5 R. 833.

At advising—