Scottish Court of Session Decisions

But the conditions precedent under which alone certain considerations have to be regarded do not exist in this case, because the fee is not given in absolute property to the sons and daughter with no further destination. There is the further destination to the heirs of their bodies respectively.

Now, the importance of that further destination comes out very clearly in that case from his Lordship's desiring to correct an error in the report of his opinion in the previous case of Haldane's Trustees. He says—“My words as reported are—‘It cannot be disputed that if the residue of an estate is destined to A in liferent and his issue in fee, and failing his leaving issue, then on the expiry of the liferent, to B, no right vests in B till the death of the liferenter without issue. This was authoritatively settled in the case of Bell v. Cheape.” Now, he goes on to say, “this is not sound law, and nothing of the kind was settled in Bell v. Cheape. But the blunder consists in this, that after these words ‘on the expiry of the liferent to B,’ there ought to be added, ‘and his heirs, executors, and assignees,’ which makes the proposition good law, and truly represents the judgment in Bell v Cheape, for that judgment proceeded on the ground that B's heirs and executors were called as conditional institutes after B, and were entitled to succeed in place of B if he predeceased the death of the liferenter and the term of payment.” So in this case the heirs of the body of Matthew were called as conditional institutes after him, and would have been entitled to succeed in his place if he predeceased the liferentrix Janet.

On the authority therefore of these cases I concur in the result at which the Lord Ordinary has arrived, although I do not concur in the grounds on which he has rested his judgment. I do not think that the decision of the case at all depends on the fact that the destination is to “heirs of the body,” and not to “children.” I also wish to say that I doubt whether the doctrine of vesting subject to divesting would have been applicable in the present case, even although there had been no ulterior destination to the heirs of the body. It will be observed that it is the case of a direct disposition of a heritable subject without the intervention of a trust. I have always understood it to be settled law since the case of Newlands that a conveyance to A for his liferent use allenarly, and to his children or the heirs of his body nascituri in fee, vested a fiduciary fee in A for his children, and I do not at present see how a fiduciary fee being vested in one person for that person's children or issue is consistent with a beneficial fee in the same subjects, being at the same time vested in another person.

Neither do I at present see why the person in whom the beneficial fee is said to be vested may not make up a title and sell the subjects, and so defeat the rights of children who may come subsequently into existence.

It is not, however, necessary to decide the question in this case, but I desire to reserve my opinion should the case hereafter occur for decision.

Lord M'Laren—I concur in all that Lord Adam has said.

In the first place, I assent to the view indicated by Lord Adam, that no decision on the vesting of a beneficiary under a trust can ever be an authority on the construction of a heritable destination. The fundamental principles applicable to the construction of such destinations are altogether diverse, and inapplicable the one to the other. In a proper heritable destination, of course the principle of construction is substitution, while in that of a trust destination the principle is always conditional institution. If I leave heritable estate to A in liferent, and to B, whom failing to C, in fee, or it may be to any number of substitutes in succession, the liferent and the fee always and necessarily vest concurrently in the liferenter and the first named fiar, and it makes no difference in the construction what words (“whom failing” or “on the death of A”) are used to connect the names of the different persons who are to take in succession. Accordingly, there can be no suspension of vesting in such a case. The exception which Lord Adam has noticed, of a disposition to a parent in liferent and to his heirs or his issue in fee, introduces a third principle of construction distinct from the two to which I have referred, because in this case the parent is a beneficiary to the extent of his own liferent, and he holds in trust for the interest of his children, but, as I take it, universally, on the condition that each child takes a vested interest on its birth. I know of no such thing as suspension of vesting under a direct heritable destination in liferent and fee except the necessary suspension until a fiar is born.

The other point on which I have a view is the proposed application of the rule of vesting subject to defeasance. I agree, for the reasons already given, that it is altogether inapplicable to this case, but I think that even if this were a case of trust, it is not a case for the application of the doctrine, because the necessary condition of vesting subject to defeasance is that if the original institution, say of issue, were absent or supposed to be absent from the deed, the persons next in order would take a vested interest a morte testatoris, and that, as explained by the late Lord President in the passage read, can only be where they are a class of persons definitely ascertained. If they are a class of persons ascertained and the period of distribution is postponed, then it is evident that even if there were no original destination to issue that class could not take a vested interest at death, because the presumption always is that the words of survivorship or conditional institution are referred to the period when the trust expires.

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