Scottish Court of Session Decisions

Mr James Stewart of Clydebank, Greenock, died on 11th November 1837, leaving a trust-disposition

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and settlement and a supplementary deed of settlement dated respectively 19th July 1825 and 2nd June 1830. By the first of these deeds he conveyed his whole estate, heritable and moveable, then belonging or which should belong to him at the date of his death, to trustees for the purposes therein mentioned. The fifth trust purpose was as follows:—“In the fifth place, after setting aside such a sum of money as will secure the payment of the foresaid annuity to my wife, I hereby direct and appoint my said trustees to redispone, convey, and make over to the issue of my present marriage the whole of my means and estate, heritable and move-able, in the event of there being only one child of the said marriage; but in the event of there being more than one, then to the said children equally among them, share and share alike; and in either case, I app to the said conveyance to be made at the periods and subject to the conditions following, namely, if a son or sons, upon his or their attaining the age of twenty-five years complete, but not sooner, a reasonable yearly allowance being made to him or them by my said trustees for their education and support, from the time of my death, or after they shall have attained the age of ten years, until they shall have arrived at the age of twenty-five years; and if a daughter or daughters, upon her or their severally attaining majority; but my said trustees are in this last case hereby directed and required to reinvest the share or shares of my estate, heritable or move-able, coming to her or them, on such security as they shall see proper, taking the conveyances or securities thereof in favour of my said daughter or daughters in life-rent, for their liferent use allenarly, and to the child or children to be lawfully procreated out of her or their bodies in fee, an allowance being also to be made by the said trustees for their support similar to the above, until they shall have attained majority as aforesaid.” In the second deed he made certain additions to and alterations on the first (immaterial to the present case), and in the third place he provided as follows:—“I hereby appoint and direct my said trustees, upon my daughters attaining majority or being married, or upon my sons attaining the full age of twenty-five years, to denude themselves of their, my said daughters' and sons' respective portions of my estate, in terms of the fifth proviso of the said deed of settlement; and in the event of any of my said children dying without lawful heirs of their own bodies, I direct and appoint the share or shares of the deceaser or deceasers to be equally divided among or invested in the name and for the behoof of the survivors or survivor, share and share alike, in terms of the said deed of settlement.”

In 1849, certain questions having arisen as to the division of the trust-estate, an action of multiplepoinding was brought by the trustees in the Court of Session ( Stewart's Trustees v. Stewart, 13 D. 1386, 14 D. 298) in which it was decided that the clauses in the supplementary deed providing for a substitution in favour of survivors in the event of any of the children dying without lawful heirs of their own bodies, referred to the case of children predeceasing the terms of division and investment which had then already arrived; and that no substitution could competently be added to the truster's direction to invest said sums in favour of his daughters “in liferent for their liferent use allenarly, and to the child or children to be lawfully procreated of their bodies in fee.” In the course of these proceedings Miss Helen Love Stewart executed a deed of nomination of trustees dated 16th December 1852, to whom her share was accordingly conveyed by Mr James Stewart's trustees in trust for behoof of the said Helen Love Stewart in these terms.

Miss Helen Love Stewart died unmarried on 17th June 1895 leaving a holograph settlement dated 10th June 1895, by which she assigned and disponed her whole estate and effects heritable and moveable to trustees for the purposes therein mentioned of which the principal was to pay legacies of £1500 each to each of her nephews and nieces who should survive her.

In these circumstances, doubts having arisen as to Miss Stewart's power to dispose of the fee of her share of her father's trust-estate, a special case was presented for the opinion of the Court. There were nine parties to the case, of whom the third, fourth, and seventh represented brothers and sisters of Miss Helen Love Stewart. The fifth parties were the testamentary trustees under the settlement executed by Miss Helen Love Stewart. The separate contentions maintained by the other parties were given up at the bar.

The fifth parties maintained that the testator gave an absolute gift of a share of his estate to each of his children, that the destination in favour of children's children was a mere burden on the fee, which was vacated on Miss Helen Love Stewart's death without leaving issue, and that in any view Miss Helen Love Stewart having survived the period of division, to which alone the destination to children's children was referable, was entitled to dispose of the fee of her share.

The third, fourth, and seventh parties maintained that the testator made no absolute gift of a share of his estate to each of his daughters in fee, but that their right in such shares was restricted to a liferent; that Miss Helen Love Stewart had no power to dispose of the share liferented by her; that the said share fell into intestacy of the testator, and must be divided among his next of kin as at the date of his death.

The opinion and judgment of the Court was desired upon, inter dlia, the following question of law—(1) Had Miss Helen Love Stewart power to dispose by will of the share of her father's trust estate, bequeathed to her by his trust-disposition and settlement.

Argued for the fifth parties—There was here in effect an absolute gift to Miss Stewart in the event, which happened, of

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her dying without issue. The case was ruled by Lindsay's Trustees v. Lindsay, 8 R. 281, as followed in Dalglish's Trustees v. Bannerman's Executors, 16 R. 559, and Logan's Trustees v. Ellis, 17 R. 425. This case was a contrast to the case of Muir's Trustees v. Muir's Trustees, 22 R. 553, inasmuch as there the direction to the trustees was “to hold for behoof of children” the shares being “to be set aside, and held and invested, and otherwise dealt with as after mentioned,” viz., for the beneficiaries' life-rent use allenarly with a fee to their children— Fulton's Trustees v. Fulton, 7 R. 566, if in point here, is now overruled by Lindsay's Trustees, cit. See per Lord Lee in Dalglish's Trustees, cit. at p. 564.

Argued for the third, fourth, and seventh parties—The daughter's right was to a life-rent only. The rule in Lindsay, Dalglish, and Logan, cit., was applicable solely to the case of an absolute and unconditional gift subsequently modified in a certain event which does not take place—See Muir's Trustees, cit., per Lord M'Laren at p. 557. That case was an authority in favour of these parties, because in the deeds here under construction the testator never gave anything except a liferent to his daughters. The cases of Lindsay, Dalglish, and Logan were, moreover, distinguished from the present, in respect that in all these cases there was present the element of repugnancy, which was absent here. This case was on all fours with Fulton's Trustees v. Fulton, cit. The fund therefore fell into intestacy, and passed to the testator's next-of-kin as at the date of his death.

At advising—