Scottish Court of Session Decisions

Mr John Mackay, Edinburgh, died on 19th April 1881, leaving a trust-disposition and codicil dated respectively 16th January 1878 and 18th July 1879. By his trust-disposition Mr Mackay conveyed his whole estate to trustees. By the third purpose of it, he directed his trustees to pay the whole income of his estate (except so far as required to meet a provision in favour of his eldest son, and certain annuities) to his wife Mrs Agnes Christie or Mackay in liferent, for her liferent use only.

Page: 684↓

By the 9th purpose it was provided as follows:—“Immediately after the death of the longest liver of us, the said John Mackay and Agnes Christie or Mackay (until which event happens no right to any portion of the estate and effects hereby conveyed shall vest in any of my daughters), my said trustees shall proceed to realise, so far as they shall deem necessary, the estates and effects hereby conveyed, and at the first term of Whitsunday or Martinmas, which shall occur three months after the death of the survivor of us, they shall divide or convey or pay and make over the whole estate and effects then belonging to me to and among my children, except the said John Christie Mackay, equally share and share alike, the lawful issue of any of them who may have predeceased taking the parent's share, it being provided, in regard to the shares of my daughters, that my trustees are hereby directed to hold the share of each daughter, while unmarried, in trust for her behoof in liferent, for her liferent use allenarly, the interest or annual produce thereof being payable to them respectively in equal portions at Whitsunday and Martinmas, and on the marriage of such daughter it shall be the duty and right of my said trustees to take care that the share of the daughter so marrying shall be dealt with and provided for so that the same shall belong to and be held for behoof of the daughter so marrying, exclusive of the jus mariti and right of administration of her husband, and as an alimentary fund for behoof of herself during her marriage; and also that, in case no child or children be born of her marriage, she shall have power to dispose after her own death of the capital sum invested for her behoof, and also of the interest or annual produce thereof, as she shall see fit, but that only, both as regards the capital and interest, to the extent of the one-half of the share of my estate accruing to her, it being hereby expressly provided and declared that the remaining one-half of such share shall not vest in such daughter or daughters, but shall on her or their death without children fall to and be divided among my other children or their issue, in such proportions as such daughter or daughters may direct by any writing under her or their hands, which failing, such share shall fall into and form part of the residue of my estate, and be divided among my other children (the issue of any of them who may have predeceased taking the parents' share), in the same way as is above provided for in regard to the division of the residue of my estate.”

The truster was survived by his widow and by four sons and three daughters. His widow died on 18th December 1885. Of the truster's children, one, Miss Mary Mackay, died unmarried on 14th August 1896, leaving a trust-disposition and deed of settlement by which her whole means and estate, including all estate which at the time of her death she was entitled to test upon, were conveyed to trustees. On the death of Mrs Mackay, Mr John Mackay's trustees, at the request of the parties interested, continued to hold the trust-estate, and divided the free income thereof among the beneficiaries. Thereafter they from time to time realised portions of the estate, and divided the proceeds among the beneficiaries, but continued to hold the portions in which the daughters were interested, and to pay them the interest.

A Special Case was presented by (1st) Mr Mackay's trustees, and (2nd) Miss Mackay's trustees and executors.

The first parties maintained that no fee of a share in her father's estate had vested in Miss Mackay at the date of her death, and that it was not carried by her will.

The second parties maintained the contrary, and alternatively that on her death the fee of her share lapsed and fell into intestacy.

The questions submitted to the Court were—“(1) Had the said Miss Mary Mackay a vested interest in the fee of a share of the said John Mackay's estate, under the ninth purpose of his trust-disposition and settlement? (2) Had the said Miss Mary Mackay a power of disposal by mortis causa deed of the said share, or any part thereof?; or (3) Does the fee of the said share, to any, and if so to what extent, fall into and form part of the residue of the truster's estate?; or (4) Does the fee of the said share lapse and fall into intestacy?”

Argued for first parties—The deed contained no words of absolute gift but merely a direction to the trustees to divide. Moreover, the gift such as it was, was displaced by the restriction to a liferent. Accordingly the direction to pay must be read as qualified by the succeeding direction, and as not conferring a vested right on the unmarried daughters— Muir's Trustees v. Muir's Trustees, March 19, 1895, 22 R. 553; Greenlees' Trustees v. Greenlees, December 4, 1894, 22 R. 136; Spink's Executors v. Simpson, February 16, 1894, 21 R. 553; Campbell v. Campbell, December 3, 1852, 15 D. 173.

Argued for second parties—The clause began by a clear gift of fee; and that being so, it was clear from the authorities that a child could not be divested of this right by subsequently restricting the gift to a liferent, unless there was another fiar inserted. This rule was laid down in Lindsay's Trustees v. Lindsay, December 14, 1880, 8 R. 281, and had been constantly followed, the latest example being Stewart's Trustees v. Stewart, January 23, 1896, 23 R. 416; Dalglish's Trustees v. Bannerman's Executors, March 6, 1889, 16 R. 559.

At advising—