Scottish Court of Session Decisions

Mr William M‘Lean of Plantation, Glasgow, died on 22nd February 1867 leaving a trust-disposition and settlement with relative codicil dated respectively 26th May and 18th December 1866.

By his trust-disposition Mr M'Lean disponed his whole estate to trustees, and after directing them as to the payment of his debts and certain annuities he proceeded—“ Lastly, After the foregoing purposes are served, my said trustees shall divide the residue and remainder of my said means and estate, equally share and share alike, among my remaining children William M'Lean, Joseph M'Lean, Mary M'Lean or Niven, Charles M'Lean, and Rachel M'Lean, and the children of my deceased daughter Jane M'Lean or Clark, such children coming in the place of their mother, and receiving equally among them the share that would have fallen to her if she had survived me and formed one of my residuary legatees, and to the survivors of my said five children and grandchildren: declaring that in the event of any of my children before named or grandchildren

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before referred to dying prior to the division of said residue, leaving lawful issue, such issue shall succeed equally, share and share alike, to that portion of my said means and estate which would have devolved on their parent under the destination above written, and as if such parent had survived said period of division And to enable my said trustees and their foresaids to carry these presents into effect, I authorise and empower them to sell by private bargain or public roup all or any portion of my said means and estate before conveyed, and that at such times as they may consider advantageous, and to invest, if they think proper, in such securities as they may approve of, sums sufficient for the payment of the annuities before provided, or to purchase said annuities or to allow them to remain burdens on any portion of the heritable property left by me, the said annuities being hereby declared by me to be real liens and burdens on said heritable property until such investiture or purchase, and further, with power either to postpone the division of the residue of my means and estate until the whole has been realised, or to make interim divisions, one or more, as the realisation proceeds, and in general to manage and dispose of the means and estate hereby conveyed as fully, freely, and effectually as I could have done myself before executing these presents. But I recommend to my said trustees first to be cautious in selling or feuing any portions of the lands of Plantation for some years after my death, my conviction being that the value of these lands is increasing every year, but at the same time if an offer which they consider eligible be made for the whole or any portion of said lands, it is not my wish that they should reject or lose sight of such offer, but, on the contrary, that they should use their own discretion and sound judgment in the circumstances.”

The truster was survived by his widow, his sister, two sons mentioned in the former part of his disposition, and the children and grandchildren mentioned in the last purpose quoted above.

Charles M'Lean, who died in 1806, survived by a widow and two daughters—Olivia Rachel Nora M'Lean, and Elfrida Mary Hamilton M'Lean—executed in 1882 an assignation to certain trustees of the whole right, title, and interest so far as not alimentary then pertaining to him, or which he might thereafter acquire or succeed to, inter alia, in the estate of his father. Mr William M'Lean left moveable estate amounting to £117,000 or thereby, and was also at the date of his death proprietor of the estate of Plantation so far as not feued or sold by him. After his death the trustees disposed of the greater part of the estate, and from time to time made payment of the proceeds of the sale to the residuary legatees, the amount thus paid being £331,500. No resolution was passed by the trustees postponing division of the estate. After the date of the assignation by Charles M'Lean the amount of these interim divisions due to him was paid to the trustees named therein.

A special case was presented for the purpose of determining the disposal of one-sixth of the residue of the truster's estate still in the hands of the trustees. The parties to the case were (1st) Mr William M'Lean's trustees, (2nd and 3rd) Mr Charles M'Lean's two daughters and his widow, and (4th) the trustees under his assignation.

The contentions of the parties as stated in the case were—“The fourth parties maintain that one-sixth of said residue was vested in Charles M'Lean at the date of said assignation, or at least prior to the date of his death, and that said one-sixth share was effectually carried by said assignation, and falls to be paid to the fourth parties. The second parties, on the other hand, maintain that the one-sixth of the residue still remaining unrealised in the hands of the first parties was not vested in Charles M'Lean at or prior to the date of his death, and that it, if vested at all in him, was vested in him subject to defeasance in the event of his dying prior to the realisation thereof leaving lawful issue, and therefore does not fall to be paid to the fourth parties, but that said share vested in the two daughters of the said Charles M'Lean on his death, or otherwise that it will vest in them when the first parties have realised and paid over the remaining residue of the truster's estate, and will fall to be paid to them, or retained by the first parties for their behoof until majority or marriage.”

The questions submitted to the Court were—“(1) Was the one-sixth of the residue of the estate of the truster, the said William M'Lean, still in the possession of the first parties, vested in the deceased Charles M'Lean at the date of his death, and if so, was said one-sixth validly assigned by said assignation granted by him? or (2) In the event of the preceding question being answered in the negative, did said one-sixth of said residue vest in the said Olivia Rachel Nora M'Lean and Elfrida Mary Hamilton M'Lean on the death of their father, so far as the same is still in the possession of the first parties as trustees? or otherwise, is vesting thereof postponed until the first parties have realised and divided said part of said residue?”

Argued for fourth parties—There was a direction to divide the residue, and no postponement of payment except for the purpose of realisation. The survivorship referred to the date of the testator's death, and not to any later period. There was only one period of division referred to, and that must be the testator's death, at which date the class to benefit must be ascertained. The discretion given to the trustees to postpone division was merely an administrative one and could not postpone vesting— Richard's Trustees v. Roland, December 7, 1894, 23 R. 140. The case of White's Trs. v. White, June 20, 1896, 23 R. 836, was in contrast with the present case, because there the trustees had express power to postpone payment of the capital if they considered it to be to the interest of a child, and to pay him the income.

Argued for the second and third parties—There

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were successive periods of vesting for each share, as it was in point of fact divided by the trustees. It was by no means an impossible conclusion to hold that a truster intended his trustees to have a discretion in saying whether, and if so, when, rights were to vest in beneficiaries.— White's Trs. v. White, supra; Adam's Trs. v. Carrick, June 18, 1896, 23 R. 828. There was here a survivorship clause, which in the vast majority of cases had been held to refer not to the death of the testator but to the period of payment. The direction was to divide “after” certain purposes—among which was the payment of certain annuities—had been served; and further, there was a conditional institution. A consideration of these points, coupled with the discretion given to the trustees, made the theory of vesting a morte quite untenable. That being so, the only other period for vesting was that contended for, viz., of each share as it was in fact divided and paid over.

At advising—