Scottish Court of Session Decisions

Douglas Ross died on 23rd March 1892, leaving a trust-disposition and settlement dated 2nd October 1889. By the trust-deed he conveyed his whole estate, heritable and moveable, to trustees. After making provision for the payment of debts, sickbed and funeral expenses, and certain legacies, the testator in the third purpose of the deed directed his trustees “to make over to my wife Christina Cunningham or Ross, as her absolute property, the whole household furniture and plenishing of every description belonging to me at the time of my decease; and to pay her an annuity of £50 sterling per annum during all the years of her life so long as she continues to remain my widow, which sum of £50 stg. per annum shall be paid to her in such proportions and at such times as my trustees may think proper or necessary, and shall be held to be in full satisfaction to her of all claims she may have against my estate; and in the event of my said wife marrying again, said annuity of £50 stg. shall be discontinued. Fourthly, On the death or second marriage of my said wife, I direct and appoint my trustees to realise the whole residue and remainder of my estate, heritable and moveable, real and personal, and to pay and divide the same between my nephew William Ross, son of my late brother William Ross, who shall be entitled to one-half, and the other half shall be equally divided among the said Charles Ross, John Ross, and Jessie Ross, the children of my late brother John Ross, and in the event of the said William Ross dying before the period of payment, which shall be the period of vesting, not leaving lawful issue, then the whole residue of my estate shall fall to and be divided equally among the said Charles Ross, John Ross, and Jessie Ross, and the survivors or survivor of them and their respective issue, the issue in each case being entitled to the share which their parent would have been entitled to on survivance; and I provide and declare that the interests of the residuary legatees shall Vest in them at and only upon the arrival of the period

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when the residue of my estate falls to be realised and divided.”

The testator was survived by his wife. She claimed her legal rights as his widow, and the amount to which she was legally entitled was paid over to her by the trustees. Charles Ross predeceased the testator without issue.

In these circumstances a question arose as to the disposal of the residue of the trust-estate. The trustees maintained that they were bound to hold the residue for the benefit of the residuary legatees who might survive the death or second marriage of the testator's widow.

William Ross, John Ross, and Mrs Jessie Ross or Stoney maintained that the testator's widow having claimed and been paid her legal rights, the period of vesting and of division and payment of residue had arrived.

For the decision of the point a special case was presented to the Court by (1) Mr Ross's trustees, (2) William Ross, John Ross, and Mrs Jessie Ross or Stoney, and (3) the children of William Ross, John Ross, and Mrs Jessie Ross or Stoney.

The questions at law were—“(1) Are the second parties, in respect that the testator's widow has claimed her legal rights, entitled now, and without waiting till the death or second marriage of the testator's said widow, to have the residue of the testator's estate divided and paid to them in the proportions provided by his said trust-disposition and settlement? (2) If the trustees are bound to hold until the death or second marriage of the truster's widow, are the said residuary legatees entitled to periodical payment of the income thereof until the occurrence of such death or second marriage, or must it be accumulated?”

Argued for the first and third parties—By the special terms of the will the period of vesting and payment of residue could not arrive till the death or second marriage of the widow. The case was ruled by Muirhead v. Muirhead, May 12, 1890, 17 R. (H. of L.) 45. Indeed, the present case was more favourable, because the testator had specially directed that the period of vesting was to be the period of payment. Eventual interests had also in this case to be safeguarded, and therefore the trustees were bound to hold the estate till the period of distribution mentioned in the deed— Hughes v. Edwardes, July 25, 1892, 19 R. (H. of L.) 33. The trustees were also bound to accumulate the income of the residue till the date of payment.

Argued for the second parties—The repudiation by the widow of her testamentary provisions under the husband's will had hastened the vesting and period of payment. It was obvious that the only object that existed for postponing the date of payment till the death or second marriage of the widow was to provide for the payment of the annuity to the widow. According to the will, vesting was to take place on “the arrival of the period when the residue of my estate falls to be realised

and divided.” If the Court decided in favour of their contention, that period would have arrived. The case of Muirhead could be distinguished from the present case, as in that case there was a distinct direction to accumulate the income till the wife's death. Even if it was held that the period of payment had not arrived, the second parties were entitled to payment of the income of the residue until the period of payment of the residue arrived.

At advising—