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Cite as: [1894] ScotLR 31_352_1, [1894] SLR 31_352_1

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SCOTTISH_SLR_Court_of_Session

Page: 352↓

Court of Session Inner House Second Division.

Tuesday, January 30. 1894.

[ Lord Kyllachy, Ordinary.

31 SLR 352_1

Carruthers

v.

Eeles.

Subject_1Succession
Subject_2Trust
Subject_3Vesting
Subject_4Condition
Facts:

A truster directed his trustees after the death of the survivor of him and his wife to make provision for the education of any of his children under twenty-one at that time, and to pay and convey his moveable and heritable estate to his four children equally, share and share alike, “and the survivor or survivors equally, and that at the term of Whitsunday or Martinmas immediately following the death of the survivor of my said wife and me, or the majority of my youngest child, whichever of these events shall last happen, on the following conditions—the share of the premises of each child shall be a vested
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right at majority though not payable till the youngest reach majority; if any of my said children die before the said period of division leaving lawful issue, the latter shall succeed equally to the share of their parent.” His heritable estate comprised one-third part of the estate of C.

The truster died in 1854 survived by his four children and his widow. The youngest child attained majority in 1867. The widow died in 1885. The eldest son died in 1879 directing his trustees to pay the annual income of his estate to his daughter, and on her death to divide his whole estate among her children whom failing between his brothers.

His daughter made up a title by notarial instrument to one-fourth part of the one-third share pro indivsio of the estate of C, and granted two bonds and dispositions in security over it. In an action by her father's trustee the Court reduced these deeds, holding ( diss. Lord Rutherfurd Clark) that her father's share of the lands of C vested in him prior to his death and passed to the pursuer as his trustee.

Headnote:

The Rev. William Carruthers, Queensferry, heritable proprietor of and duly infeft in the pro indiviso one-third share of the farm and lands of South Cobbinshaw, Mid-Lothian, died upon 23rd June 1854 leaving a trust-disposition and settlement by which he conveyed his whole estate to trustees, and directed them to pay to his wife Mrs Margaret Carruthers, formerly Smith, the income of his whole heritable and moveable estate during her widowhood, for these purposes, inter alia, “and that out of the said liferent and free yearly income she shall be bound to clothe, educate, and maintain the children of our marriage while unable to provide for themselves: In the first place, in the event of the said Mrs Margaret Carruthers, formerly Smith, entering into any second marriage, the trustees shall apply such parts as they deem proper, or if necessary, the whole of the annual produce of my whole succession, heritable and moveable, real and personal, to the education, clothing, and suitable maintainance of my children above named, and any other child or children who may yet be born of my body, and the survivors and survivor of them, and that during their respective minorities and while unable to provide for themselves, whereof the judgment of said trustees shall be binding on them: In the fourth place, after the death of the survivor of me and my said wife the trustees shall set apart as a debt the sum which they shall judge necessary to pay the education and maintainance of such of my children as shall then be under twenty-one years of age, until each respectively reach that age, or if daughters, shall be married, and the trustees shall pay over and divide the free proceeds of my moveable or personal estate and arrears or accumulation if any, of the whole income of the trust-estate, to and among. and shall dispone, assign, and convey my whole heritable or real estate to and in favour of the said David Carruthers, Margaret Carruthers, James Smith Carruthers, and William Carruthers, being my children, and any other child or children who may be born of my body, equally, share and share alike, and the survivors and survivor equally, and that at the term of Whitsunday or Martinmas immediately following the death of the survivor of my said wife and me, or the majority of my youngest child, whichever of these events shall happen on the following conditions—the share of the premises of each child shall be a vested right at majority, though not payable till the youngest reach majority, if any of my said children die before the said period of division leaving lawful issue, the latter shall succeed equally to the share of their parent.”

William Carruthers was survived by a widow and four children, David. Margaret, James Smith, and William. William attained majority on 11th January 1867. The widow died on 25th March 1885.

The eldest son David predeceased his mother and died upon 7th April 1879, survived by one daughter. He left a trust-disposition and settlement by which he conveyed to trustees his property and estate, and “at present belonging to me or which shall pertain and belong to me at the time of my death.” The deed proceeded—“In the third place, with regard to the residue of my estate and effects, heritable and moveable, above conveyed, I direct my said trustees to pay to my daughter Margaret Carruthers the free annual profits of the same during her life, but exclusive always of the jus mariti of any husband or husbands she may marry, to whose control or for whose debts or engagements the same shall not be subject or liable: In the fourth place, I appoint my said trustees, after the death of my said daughter, and so soon as they have realised my said estate and converted the same in cash, to pay and divide the residue of the said estate to and among all the lawful children my said daughter may leave, equally between them, share and share alike, but the principal sum of such share shall only be paid upon said children attaining the age of twenty-one years complete.”

In the event of his daughter dying without lawful children, the residue of the estate was to be divided between the testator's two brothers James and William. The testator's brother William was the sole surviving trustee under this trust-deed.

In 1892 it was found that the said Margaret had made up a title in her person by notarial instrument dated 22nd December 1888 to one-fourth part pro indiviso of the one-third part or share of the estate of Cobbinshaw which belonged to the deceased Rev. William Carruthers. She had also in the same year granted two bonds and dispositions in security for £200 respectively to Francis Eeles and Alexander Naysmith over the estate to which she had made up title.

William Carruthers, as trustee of his
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brother David, made up a feudal title to the same one-fourth part pro indiviso of the one-third share of the estate of Cobbinshaw. He brought an action of reduction of the notarial instrument of 22nd December 1888, and also of the two bonds and dispositions granted by his niece Margaret Carruthers against Margaret Carruthers, Francis Eeles, and Alexander Naysmith, and John Dryburgh, Naysmith's assignee.

The pursuer averred—“The pursuer as trustee foresaid maintains that the said one-fourth part pro indiviso of the one-third was under and in virtue of the trust-disposition and settlement of the Rev. William Carruthers, duly vested in the said David Carruthers, and was by his trust-disposition and settlement carried to the pursuer as trustee thereunder, and that he is the only person in right to make up a title to the same, and that his title is the only valid title thereto. The surviving trustee of the late Rev. William Carruthers has disponed said one-fourth part pro indiviso of the said one-third part or share to the pursuer.”

The defender pleaded—“(3) On a sound construction of the trust-disposition and settlement of the said Rev. William Carruthers, the said one-fourth part pro indiviso of the one-third part pro indiviso vested absolutely in the defender Margaret Carruthers on the death of her father.”

Upon 28th June 1893 the Lord Ordinary ( Kyllachy) pronounced this interlocutor—“Of consent holds the production so far as the said Francis Eeles is concerned satisfied: Of consent also holds the preliminary defences lodged for the said Francis Eeles as defences on the merits, and having heard counsel on the closed record, and considered the cause, Sustains the reasons of reduction, and reduces, decerns, and declares conform to the conclusions of the libel as against the said Francis Eeles, and in respect that the other defenders Alexander Nasmyth and John Dryburgh have failed to satisfy the production, grants decree against them contra non producta: Finds and declares in terms of the declaratory conclusions of the summons, and decerns, &c.

“ Opinion.—This case takes the form of an action of reduction of certain titles made up on behalf of the defender Miss Margaret Carruthers, but the only question which I require to decide seems to be this—Whether the share of the trust-estate of the late Rev. W. Carruthers bequeathed to his son the late David Carruthers vested in the latter at majority? It appears that David Carruthers survived his majority, but died before his mother, the truster's widow. The question is, whether upon the just construction of his father's settlement vesting was postponed until the widow's death?

There is undoubtedly some force in the view that the whole clause of bequest proceeds on the hypothesis that the truster and his wife have both died, or to put it otherwise, that there is no gift expressed except upon the condition that the donee shall survive both husband and wife. The clause certainly begins thus—‘After the death of the survivor of me and my said wife, the trustee shall set apart,” &c. &c. And Mr Clyde forcibly argued that these introductory words govern the whole clause, and that although the clause goes on to provide that vesting shall take place upon majority, that only means this—that assuming the widow to have predeceased, vesting shall not be postponed beyond majority by reason of the non-arrival of the period of payment, viz., the majority of the youngest child.

I cannot say that I regard this reading of the settlement as necessarily inadmissible, but, on the other hand, I have to consider that the clause or trust-purpose referred to contains an express provision to the effect that ‘the share of the premises of each child shall be a vested right at majority, though not payable till the youngest child reach majority.’ I have not, I confess, seen my way to qualify this express provision by implications, which although plausible cannot be said to be necessary. It may be that the truster intended that qualifying words should be read in, drawn from the general scheme of the clause. But I think that if that were his meaning he could easily have expressed it. On the whole I prefer to construe the settlement literally, and I therefore propose to find that the share of the late David Carruthers vested in him prior to his death and passed to the pursuer as his trustee. I suppose it follows that I should pronounce decree of reduction in terms of the summons.”

The defender Eeles reclaimed. Cases cited— Gray and Others, March 18, 1870, 42 Scot. Jur. 382; Cunningham v. Cunningham, November 30, 1889, 17 R. 218; Henderson's Trustees v. Henderson, January 8, 1876, 3 R. 321.

At advising—

Judgment:

Lord Young—The Rev. William Carruthers by his trust settlement directed his trustees to give a liferent of his whole estate heritable and moveable to his wife, and on her death and the majority of his youngest child to pay and convey the fee and capital to all his children and the survivors equally, with a declaration, probably superfluous, that the issue of predeceasors should take their parent's share. By the law, as it has now for about thirty years been held to be settled and fixed, this imports vesting in the children (or the issue of predeceasors) existing at the date of distribution. This Court had erroneously thought and decided otherwise, but the error was corrected by a judgment of the House of Lords about twenty years subsequent to the date of the settlement of Mr Carruthers, which was in 1846, and about ten years subsequent to his death, which occurred in 1854.

It is by the fourth article of Mr Carruthers' settlement that the trustees are directed as I have stated. It however contains this clause, which I have not yet noticed—“the share of the premises of each child shall be a vested right at majority, though not payable till the youngest reach majority: if any of my said children

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die before the said period of division leaving lawful issue, the latter shall succeed equally to the share of the parent.”

The question, and only question, which was argued to us is, what is the legal import of this clause. Assuming that without it ( i.e. had it not occurred) the vesting would have been at the period of distribution, and of course in the children—then surviving and the issue of predecessors—what is the meaning and legal effect of this clause. It is not contended by either party that it is meaningless or inoperative, but they are in conflict as to its true meaning and operation. The defender (for only one has appeared) contends that it refers and applies only to such of the testator's children as may happen to survive the liferentrix (their mother), and must be read and have effect exactly as if the words had been “the share of the premises of each child who may survive the liferentrix shall be a vested right at majority,” the reason which he assigns being that this is the reasonable and just inference from the words “though not payable till the youngest reach majority,” and that had this inference and limitation not been intended these words would either have been omitted or enlarged so as to read “though not payable till the youngest reach majority and the death of the liferentrix.” The pursuer disputes this construction, and the reasoning in support of it, on grounds which, whether sound and conclusive or not are sufficiently obvious. He says that the primary and leading words are too plain to admit of construction; that the testator's object manifestly was to enable each child after attaining majority to deal with his prospective estate as a vested right, so that those who came in his place at the time of distribution (if he did not survive) should take it as he would himself have done subject to his debts and deeds incurred or made after ma jority; that the words “though not payable till the youngest attain majority” are superfluous, meaning only “though not then payable.” The Lord Ordinary favours the view of the pursuer rejecting that of the defender, and I agree with him.

The facts of the particular case as they have occurred illustrate the pursuer's contention as to the true sense and meaning of the clause in question and the purpose which the truster intended thereby to effect. He was survived by his widow for thirty years, and she survived the majority of the youngest child for nine years. That child was born shortly before the father's death and was over thirty when the mother died. The eldest child (David)—the validity of whose deed is in question—had a daughter (Margaret) born to him in his mother's lifetime, and in 1877 he executed a trust-disposition and settlement primarily in her favour, but with trusts for her protection and an ulterior destination. He died in 1879, when the youngest child of his father was twenty-four years old and he (the eldest) necessarily older. Now, it seems to me that the intelligible, legitmate, and indeed obvious purposes of the truster (the Rev. William Carruthers) in inserting the clause in question in his settlement was, that such a deed as his eldest son executed after majority should have validity and effect upon his “share of the premises.” I can conceive no other, and no other was suggested. But this purpose has no apparent connection with the accident, whether the payment shall in the result be delayed beyond the time of a child's share becoming “a vested right” by the continuing minority of the youngest child or the prolonged survivance of the widow. It must of necessity, by the terms of the deed, be delayed till both events shall have occurred, and which of them shall first happen seems immaterial to the only purpose and intention which can reasonably be imputed to the testator.

I am therefore of opinion that David's “share of the premises” was “a vested right” in him at the time of his death, and that his deed must have effect upon it accordingly.

After the facts were stated to us by counsel I pointed out that it was impossible, so far as I could judge, to pronounce any judgment either under the reduction or the declaratory conclusion as matters now stand. Both parties, however, concurred in desiring an expression of our opinion on the construction and import of the clause in the Rev. William Carruther's trust-deed to which I have referred, and which was fully argued. I have expressed my opinion upon that clause accordingly.

Lord Rutherfurd Clark—The question is whether under the residuary clause of Mr Carruther's trust-disposition the benefit given to his children vested as they severally attained majority, or whether the vesting was postponed till the death of the widow.

The testator directed his trustees to divide his moveable and heritable estate among his whole children in equal shares, “and the survivors or survivor equally, and that at the term of Whitsunday or Martinmas immediately following the death of the survivor of my said wife and me or the majority of my youngest child, whichever of these events shall last happen.” The parties did not dispute that if the question had to be decided by this claim alone, no interest could vest till the death of the widow. The reason is obvious. Nothing is given except through the division which the trustees are directed to make, and they can make no division until the death of the widow. And as it is settled that the survivorship clause must be construed by reference to the period of distribution, the meaning of the truster necessarily is, that the trustees are to divide the residue among such of his children as survive that period. Under such a clause no other children could take benefit.

But the division was to be made on the following conditions:—“The share of each child shall be a valid right at majority, though not payable till the youngest reach majority,” &c. It is said that this declaration is absolute and unqualified, and that

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by virtue thereof the share of each child must vest when he attains majority. Such a reading is an abrogation of the survivorship clause. If we adopt it we must hold that under a direction to divide, a vested interest is conferred on a legatee who is not one of the persons on whom the division can be made.

It is our duty, if we can, to give a meaning to every clause of the deed. It may happen that there is an absolute inconsistency, and in that case the latest clause would prevail. But if the different clauses may fairly bear a construction which will give consistency to the whole deed, we must accept that construction, or if this be impossible we must endeavour to reduce the inconsistency to its lowest limits.

There are two periods at which the division may take place, viz., the death of the widow and the majority of the youngest child. In stating the conditions the truster contemplates the latter only, but I think that he contemplates it as a period of division, or, in other words, he is referring to a time at which his wife is dead. For it is only on the supposition that that event has occurred that the period which he mentions is a period of division. I am disposed therefore to read the condition as merely accelerating the date of vesting after the death of the widow.

I am aware that this construction does not give consistency to the whole deed. For the division is directed to be made on the survivors of the last of two events, and a vested interest is given to a child who may not survive both. We must, however, give effect to the express declaration of the truster. I follow the rule of which I have previously spoken, and I do not carry the inconsistency further than the language of the deed necessarily requires.

Lord Trayner—I am not prepared to adopt the view that the opening words of the clause under construction, viz., “after the death of the survivor of me and my said wife” &c., govern the whole clause. Fairly read along with the context, these words appear to me to be limited in their application to the first matter with which the clause in question deals. By the second trust purpose of the late Mr Carruthers' settlement his trustees are directed to give to his widow the liferent and free yearly income of his whole estate, out of which she is taken bound to educate and maintain the children of the marriage, with a declaration that in the event of the widow entering into a second marriage her liferent shall cease. The third purpose provides that in the event of the widow entering into a second marriage the trustee shall apply a part or if necessary the whole of the annual produce of the estate in the maintenance of the children during minority or while unable to provide for themselves; and the fourth purpose (set forth in the clause in question) provides that “after the death of the survivor of me and my said wife, the trustee shall set apart as a debt the sum which they shall judge necessary to pay the education and maintenance of such of my children as shall then be under twenty-one years of age” until they reach that age or be married. Now observe what these clauses come to. They are, so far as the children are concerned, provisions for three different sets of circumstances. First, if the widow does not enter into a second marriage she gets the liferent of the whole estate under burden of maintaining and educating the children of the marriage; second, if the widow enters into a second marriage she loses her liferent, and the children are to be provided for by the trustees. The position and necessities of the children are thus provided for during their mother's survivance whether she enters into a second marriage or not. But another contingency had to be provided against, namely, the decease of the widow, and with regard to that the trustee provided (third) that after the death of himself and his widow the trustees shall provide for the children in minority or unable to support themselves, in a certain way. This third contingency is in my opinion what the opening words of the fourth trust purpose refer to, and nothing else. The rest of the fourth purpose although in form a continuation of the clause, is really a new provision relating to a totally different matter, namely, the vesting and distribution of the fee of the estate, after liferent for the widow or maintenance of children have been provided for, and need no longer to be considered. I think, therefore, we proceed to the construction of the clause in question unembarrassed by the words with which it commences: and looking at the clause in that view I reach the same conclusion as the Lord Ordinary. The period of payment of the children's provisions is postponed until after the death of the widow and until the youngest child has attained majority, because the liferent of the one and the maintenance of the other render such postponement necessary. But postponement of the term of payment does not per se postpone the period of vesting. Here the truster has fixed the period of vesting, for he expressly declares that the benefits conferred on his children by his settlement are conferred on the following conditions—the share of the premises of each child shall be a vested right at majority, though not payable till the youngest reach majority. It is pointed out to us that this assumes (although it is not expressed) that the widow must be dead when the youngest child attains majority, because until the widow's death the existence of her liferent would prevent the division of the estate. I agree that this must be so. Before payment to any child of his share of the estate, the widow must be dead and the youngest child major. But the vesting is declared to take place as each child attains majority, and the vesting therefore, according to the trustee's express declaration, is not postponed until the period of payment. I do not think it admissible to fix a period of vesting, as a result of mere construction, different from that which the testator has fixed in precise and unambiguous language. I am therefore

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of opinion that the share of the late David Carruthers vested in him when he became major, and was consequently carried by his settlement to the pursuer.

The Court adhered.

Judgment:

The Lord Justice-Clerk was absent.

Counsel:

Counsel for Reclaimer— Ure— Clyde. Agent— A. C. D. Vert, S.S.C.

Counsel for Respondent— Dundas— Craigie. Agents— Mackenzie & Black, W.S.
1894