Scottish Court of Session Decisions

Mr Lawrence Bowman, coalmaster, Buckhaven, died on 22nd September 1882, leaving a trust-disposition and settlement dated 17th March 1882, whereby he conveyed to trustees his whole estates, which included his interest in the firm of Bowman & Co., coalmasters, Muiredge, and in the leases in the coalfields in favour of that firm, giving full power to his trustees to represent him in the firm and carry on the leases. The deed contained the following directions to the trustees:—“ Secondly, I direct my trustees to allow Mrs Catherine Cairns or Bowman, my wife, in the event of her surviving me, the liferent use and enjoyment of the house presently occupied by me, with the whole furniture and plenishing therein, and such allowance as my trustees may consider necessary for the maintenance and support of herself and such of my daughters or their children as may be living in family with her.” Then followed a direction as to the use of the house and furniture by the truster's daughters in case they were not required by his wife, and as to an allowance to be made to the daughters as long as they should occupy the house, for their own support, and for the support of the children of one who was married. The deed then continued—“ Fifthly, in respect that I have already given my son Archibald and my daughter Janet £1000 each, I direct my trustees, on the realisation of my estate, to pay my daughter Isabella the like sum of £1000, and to pay to or hold for behoof of my son Robert the like sum of £1000; these provisions in favour of Isabella and Robert being over and above and independent of the share of the residue of my estate hereinafter bequeathed to them. … Eighthly, I hereby specially empower my trustees to advance during the currency of the trust out of the principal of the shares of my estate effeiring to any child any portion thereof that my trustees may consider to be for their advantage, and in like manner to the child or children of any deceased child, the sum or sums so advanced to be deducted from the share of my estate effeiring to the parties to whom such advance or advances have been made at the period of division, but no interest shall be charged on such advances: Ninthly, I hereby appoint my said son Archibald Bowman to attend to the interests of the trustees as representing me in the said firm of Bowman and Company: and I direct my trustees to pay him for so doing a salary of £104 per annum so long as he shall continue to perform the said duty, and that quarterly, as the said quarterly payments shall become due: Failing the said Archibald Bowman filling the said office by his predeceasing me, refusing to do so, or resigning the same, I direct my trustees to appoint another to the office, whether of their own number or other fit person, at such salary as the services of a competent party can be obtained, until the said firm of Bowman and Company shall be wound up…. Tenthly, I hereby specially empower my trustees, as representing me in the said firm of Bowman and Company, to be parties to any new lease or leases which the said firm may consider it expedient to enter into.” It was declared that the trustees were not to incur any personal responsibility for any loss sustained while representing him in the firm, but were to be indemnified for such loss out of the trust-estate, and the truster then proceeded— “ Eleventhly, On the dissolution and winding-up of the said firm of Bowman and Company, in the event of the predecease of my said wife, and if she then survives on her death, I direct my trustees to realise my whole means and estate, and to divide the same into four equal shares, and pay one share to each of my children Archibald, Janet, Robert, and Isabella, or to their respective heirs: Declaring, however, with reference to the share of the residue to my son Robert, and to the bequest of £1000 to him, my trustees shall have full power, if they consider it to be for his benefit, to invest the share of the residue of my estate, and the said sum of £1000 provided to him, and pay him the annual proceeds thereof for his alimentary use and subsistence only.”

The truster was survived by his wife

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and by his four children, Archibald, Mrs Geddes, Robert, and Isabella. Of these Isabella died in 1891, and Robert in 1893. Robert, who was born in 1844, was addicted to drinking, and at the date of his father's trust—disposition was undergoing fifteen years' penal servitude for having killed his wife in the course of a violent quarrel.

The trustees, in virtue of the powers contained in the tenth purpose of the trust, became parties along with the other partners in the firm to new leases of the collieries worked by them, the last of which was to expire in 1912. They were also parties to a contract of copartnery of the firm which was to last till the expiry of the leases.

Advances were made by them from time to time to all the truster's children, in virtue of their powers under the eighth purpose.

While Mrs Bowman, the truster's widow, was still alive, an action was raised by the representatives of Isabella and Robert against Mr Bowman's trustees and others, craving for declarator that the shares of residue bequeathed by Mr Bowman under the eleventh purpose of the trust-disposition, vested in his four children a morte testatoris. The defenders averred that at the date of his trust-disposition Mr Bowman was suffering from an incurable disease, and that he did not expect to live many months, and that he did not contemplate that the partnership would be continued beyond Whitsunday 1892, which was the date referred to by him in his trust-disposition as that of “the dissolution and winding-up of the said firm.” They pleaded—“(2) On a sound construction of the said trust-disposition and settlement of Lawrence Bowman, the shares provided under the eleventh purpose to his children, or to their heirs, do not vest until the death of Mrs Lawrence Bowman, she having survived the period of the dissolution and winding-up of the firm of Bowman & Company contemplated by the truster, viz., Whitsunday 1892.”

The Lord Ordinary ( Stormonth Darling) on 30th June 1897 granted decree of declarator in terms of the conclusions of the summons.

Opinion—“This case takes the form of a declarator of vesting, and presents for construction the eleventh or residuary purpose of the late Mr Lawrence Bowman's will. The pursuers are the representatives of two of his children who survived him, but are now dead, and the defenders are his trustees and his grandchildren. I am of opinion that the pursuers are entitled to the declarator which they ask.

The testator was at his death (which took place in 1882) partner in a firm for working certain coalfields in Fife, and he gave his trustees power not only to represent him in the firm (which the contract of copartnery allowed them to do), but also to be parties to any new lease or leases which the firm might consider it expedient to enter into. New leases have been entered into, and the firm has not yet been dissolved. The testator left a widow, who is still alive, and four children, two of whom, as I have said, are now dead. For his widow he made certain provisions, chiefly discretionary on the part of his trustees, and he gave his trustees power to make advances out of capital for any child or for the issue of any deceased child. Finally, he dealt with the residue thus— ‘On the dissolution and winding-up of the said firm of Bowman & Co., in the event of the predecease of my said wife, and if she then survives, on her death, I direct my trustees to realise my whole means and estate, and to divide the same into four equal shares, and pay one share to each of my children, Archibald, Janet, Robert, and Isabella, or to their respective heirs.’

The question is, Did the residue vest in these four persons a morte testatoris, or was vesting postponed to the period of division, which has not yet arrived?

The arguments of counsel resolved themselves into the inquiry whether the rule adopted in Bryson's Trustees v. Clark, 8 R. 142, or the rule adopted in Hay's Trustees v. Hay, 17 R. 961, was applicable. It is true that every will must be judged according to its own terms, but a principle of construction was established in Hay's case which seems to me to have a direct bearing. I find that principle expressed in Lord M'Laren's opinion thus—‘We must endeavour to find some definite criterion to be applied to such cases, and I think the true criterion is this, that where legatees of the second order are either mentioned by name or by some description independent of the first, then they may be taken to be personæ delectæ, and their contingent interest is sufficient to suspend the vesting of the estate; but if the legatees of the second order are described as the children, or issue, or heirs of the institute (there being no ulterior destination), these are to be considered in this question as persons instituted in consequence of their being the natural successors of the institute, and therefore as taking a right which is subordinated to his, and is not intended to interfere with his acquisition of the fullest benefit which it was possible for the truster to give him, consistently with the benefits previously given to liferenters or other persons.’

That opinion was concurred in by the late Lord President and Lord Shand, who had taken part in the decision of Bryson's Trustees v. Clark. I think it fits the present case exactly, for I can see no material difference between the expression ‘ and his heirs’ in that case, and the expression ‘ or their respective heirs’ in this. Nor can anything be made of the fact that the evident purpose of postponement in Hay's case was to provide a total liferent to the testator's widow, while here the evident purpose was both to provide for the widow's discretionary annuity, and also to allow of the testator's capital being left for a considerable time in the prosperous business of his firm.

An argument was founded by the defenders on the eighth purpose of the will, as tending to show that vesting was postponed;

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but the language of that clause seems to me quite as consistent with the view that the mention of ‘heirs’ was merely intended to provide for the case of one or more of the institutes predeceasing the testator. I can find nothing in any part of the will to suggest that the testator preferred his grandchildren to his children, and the fifth purpose indicates very pointedly his wish to make his four children exactly equal.

The defenders alternatively demanded a proof, but they have averred nothing which could be relevantly admitted to probation. A court of law is entitled to know the circumstances surrounding a testator when he made his will, but it is not entitled to go outside the will for evidence of his intention.”

The defenders reclaimed.

Argued for reclaimers — This was not a case where payment was postponed only for keeping up a liferent, but it was also for the purpose of keeping the estate in the business, and the estate was given as it was to be at the dissolution of the firm, and that was the date when the testator intended the beneficiaries should be ascertained. It would be a novelty to hold that a vested right could exist in money tied up in a speculative business, the amount of which would depend upon the conduct of the trustees. This case was not governed by Hay's Trustees v. Hay, supra, the rule laid down there being an artificial one, for the ratio of which there was no room here For to give effect to the contention of the reclaimers would not result in letting in strangers as opposed to personæ prædelectæ, since the latter were the very persons who would benefit thereby. Moreover, the testator showed as much interest in his grandchildren, and treated them as primary beneficiaries to as great an extent as his children. At the time the testator made his will he was aware that he was dying, and accordingly the words “or to their respective heirs” could not be read as intended merely to provide for a lapse in case of a child predeceasing — Adam's Trustees v. Carrick, June 18, 1896, 23 R. 828; Stodart's Trustees, March 5, 1870, 8 Macph. 667. The limitations of the application of the rule in Hay's Trustees were expressed in Hughes v. Edwardes, July 25, 1892, 19 R. (H. of L.) 33, December 19, 1890, 18 R. 319. Moreover, there was a destinction here in the use of “or” instead of “and” in Hay's Trustees, and it was for the respondents to show that it was used as equivalent to it.

Argued for respondents — There were none of the usual clauses indicating postponement of vesting, while the power to advance indicated that something was already due to the beneficiaries. The distinction between “or” and “and” in no way differentiated the case from Hay's Trustees by which it was clearly ruled— Cochrane v. Cochrane's Executors, November 29, 1854, 17 D. 103; Douglas v. Douglas, March 31, 1864, 2 Macph. 1008.

At advising—