Scottish Court of Session Decisions

About 1878 William Grant and his brother Peter Grant senior went to Keith where they resided together and carried on business as horse and cattle-dealers. They were both unmarried. William Grant had a natural daughter Margaret Grant, and she resided with him and his brother and kept house for them during all the time they were in Keith. About 1885 William and Peter Grant senior took to live with them a grand-niece Helen Grant, daughter of a nephew William Grant, shepherd, residing in Keith. Helen Grant, who was born on 14th December 1883, was then about two years of age. She continued to reside with her two grand-uncles till she was about ten years of age, when she was taken back to live with her parents. At that time she remained with her parents about six weeks, when, on returning from church one Sunday, she was seen by her grand-uncle William Grant, who took her home with him again, and she thereafter continued to live in family with him till his death.

William Grant, the grand-uncle of Helen Grant, died on 9th June 1893, leaving a trust-disposition and deed of settlement dated 5th May 1893. By the trust-deed he, after providing for payment of his debts and funeral expenses, and payment of a legacy of £20 to his natural daughter Margaret Grant Smith, Torrans, Tomintoul, disposed of the residue of his estate as follows, viz.— “( Second) With regard to the residue and remainder of my said estate above conveyed, I hereby direct my said trustees and their foresaids to pay to the said Peter Grant senior the free annual income, or proceeds thereof, during all the days of his life, but under the burden of his maintaining in family with him my natural daughter Margaret Grant, presently residing with me and my grand-niece Helen Grant, daughter of my nephew William Grant. ( Third) Upon the death of my said brother, or at my death, should he predecease me, I hereby direct my said trustees to divide the said residue into two equal parts or shares, and to pay, assign, and dispone one equal part or share thereof to my daughter the said Margaret Grant; and with regard to the other equal part or share I hereby direct and appoint my said trustees, should the said Helen Grant be then under twenty-one years of age, or unmarried and living with the said Margaret Grant, or apart from her father and mother, and so long as she shall live apart from her father and mother, to pay the interest or annual income of the said other equal part or share to the said Helen Grant, or expend the same for her maintenance or behoof, and upon her marriage, or upon her attaining the age of twenty-one years complete, whichever event shall first happen, to pay, assign, and dispone the said equal part or share of said residue, along with any unexpended income to her as her absolute property. ( Fourth) But should the said Helen Grant before the periods of payment of said residue here before mentioned return to live with her parents, she shall ipso facto forfeit all right to any interest whatever in my estate, and the share of the residue hereinbefore provided for her shall, with any unexpended revenue, be at once, on such an event happening, paid to my daughter the said Margaret Grant, but always with and under the burden before provided of the liferent of my said brother Peter Grant senior, and in the event of my daughter Margaret Grant surviving me, but predeceasing my said brother Peter Grant senior, and the said Helen Grant forfeiting her interest in my estate as aforesaid, then the share of my said estate so forfeited shall be disposed of by my said trustees in terms of any provisions thereanent contained in any settlement of his affairs by my brother the said Peter Grant senior which he is hereby empowered to make.”

The free residue of the truster's estate amounted to about £1000. After the truster's death Helen Grant continued to reside with Peter Grant senior until his death on 14th August 1896. Shortly after the death of Peter Grant senior, the liferenter of the trust fund, one-half of the free residue of the truster's estate was paid by his trustees to Margaret Grant and the other half amounting to £533, 10s. 1d. was invested for behoof of Helen Grant.

After the death of Peter Grant senior Helen Grant resided with Margaret Grant till September 1897. Thereafter she was boarded in suitable lodgings in Land Street, Keith, but wished to return to her parents. The trustees were, however, not certain as to whether the provision in her favour would not be forfeited by her so doing.

For the settlement of this question a special case was presented to the Court by (1) the trustees, (2) Helen Grant, with consent of her father William Grant as her curator, and (3) Margaret Grant.

The parties stated in the case that William Grant, the father of the second party, “is employed as a shepherd, and earns a weekly wage of about 20s. His wife, the said Helen Grant's mother, is alive, and they have five children, including Helen, who is the eldest of the family. Both parents of the second party are of good character, and the first and third parties know of no objections on personal grounds to their acting as guardians of the second party.”

The questions of law were—“Does clause fourth of the said trust-disposition and settlement validly and effectually impose a condition upon the bequest in favour of the second party to the effect that in the event of her returning to live with her parents before her majority or marriage, she shall forfeit all interest in the estate of the truster? Or, is the second party entitled, notwithstanding the terms of the said fourth clause, to return to and live in family with her parents without incurring forfeiture of the provisions in her favour?”

Argued for second party—Clause 4 of the trust-disposition, in so far as it provided for the forfeiture of the provision in her favour in the event of her returning to live with her parents was unreasonable, capricious, and contra bonos mores, as being an interference

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with natural and moral law. It was therefore not valid or binding, and she was entitled to return to and reside with her parents without incurring forfeiture of the provision— Fraser v. Rose, July 18, 1849, 11 D. 1466; Wilkinson v. Wilkinson, 1871, L.R., 12 Eq. 604.

Argued for third party—If this was held to be a conditional bequest, then the condition was valid and binding. It was a provision conferred by one who had no natural obligation to provide for the second party, and therefore the condition attached to it was valid even if in the case of a provision made by a parent for a child such a condition would be void—Stair, i. 3, 7; Erskine, iii. 3, 85, Lord Ivory's Note, 211; Reid v. Coates, March, 5, 1813, F. C.; Bell's Illustrations, ii. 407. The present case was different from Fraser v. Rose, because (1) the latter case was one of father and daughter, and the father was under a natural obligation to provide for the daughter, (2) the daughter was of full age, and (3) she had been living with her mother. In the present case the child had for most of her life resided apart from her parents, and it might be quite reasonable to suppose that the truster inserted this condition in order to prevent his legacy being employed not in maintaining the girl but her whole family at the expense of the girl. 2. This was not a conditional bequest at all. It was a gift subject to a limitation for a specified time. In such a case if the limitation was struck out the whole gift was rendered invalid; it was impossible to give effect to the gift without importing the limitation into it— Trafford v. Maconochie, 1888, L.R., 39 Ch. D. 116.