Scottish Court of Session Decisions

John Begg, distiller, Lochnagar Royal Distillery, Aberdeenshire, died on 8th February 1882 leaving a general settlement dated 13th August 1880, by the fifth purpose of which he made provision for his grandchildren. By this purpose he provided that “on the death of my wife my whole means and estate, so far as not then already done, shall be converted into cash, and the whole of my means and estate shall then be divided into two halves, one of which halves … shall be divided equally among my children Isabella, Henry, and John, and the other half thereof (subject to the after-written provisions thereanent) shall be divided equally among my grandchildren, one-third to each family, and as regards the members of each family, equally among them, share and share alike… And I provide, with regard to the shares falling to my grandchildren, that the revenue thereof after my wife's death shall be paid to them until the period of division after-mentioned, and that so soon as the youngest member of any family shall attain the age of twenty-five years complete, the whole of the share of my means and estate falling to the members of such family, with all interests and profit thereof so far as not paid away, shall be divided amongst my grandchildren, the members of such family, and the survivors equally, share and share alike, it being, however, hereby provided that the shares of any of them dying before the period of division leaving lawful issue, shall fall to such issue equally as coming in their parent's place; and providing further that my trustees shall have power to advance to any of my grandchildren or their issue, before the foresaid period of division, such sum to account of their presumable shares as my trustees shall in the whole circumstances think reasonable and fit, which sums so paid to them shall be reckoned as payment to account of the shares ultimately failing to them.… And in the event of any part of the foresaid shares of my means and estate provided to any family not having been paid over to such family, and of the members thereof and their issue all failing by death, then I direct the same to be paid over to the members of the other families, equally among them by families.” …

The testator died predeceased by his wife, and survived by his three children Isabella, Henry, and Eliza Begg.

Henry Begg married and had nine children. He died on 9th May 1896. One of his children, Alice, married Percy Gibson, and predeceased her father on 30th July 1893, leaving a mutual settlement bet ween her and her husband dated 29th September and 11th October 1892, disposing of her whole estate, and survived by one child, William Henry Percy Gibson. Henry Begg's other eight children survived him, but one of them, George Hay Begg, died unmarried on 11th January 1898 leaving a settlement of his whole estate. The rest of Henry Begg's children still survived. The youngest, viz., Eveline Lucy Begg, would not attain the age of twenty-five years till 9th May 1907.

Eliza Begg married William Mitchell, and died on 29th June 1884, leaving six children. One of these, William Mitchell junior, survived his mother, and died on 4th October 1895, leaving a settlement disposing of his whole estate. The remaining five still survive. The youngest Henry Mitchell, would not attain the age of twenty-five years till 31st July 1900.

In these circumstances a question arose as to whether the shares falling to the grandchildren of the testator John Begg had vested in them at his death, and for the settlement of the point a special case was presented by (1) John Begg's trustees, (2) the surviving children of Henry Begg and Eliza Begg or Mitchell, (3) William Mitchell junior's executor, (4) Alice Begg or Gibson's executor, (5) William Henry Percy Gibson's curator ad litem, and (6) George Hay Begg's trustees.

The question of law was—“(1) Did the shares falling directly to grandchildren of the truster vest in them at the death of the truster?”

Argued for the second, third, fourth, and sixth parties—On the construction of the deed as a whole it was plain that the shares destined to grandchildren vested in them at the death of the testator. There was in the deed a gift of half of the residue to the grandchildren by a clause which was independent of the clause specifying a time for division. If the primary words in the first clause were looked at, there was a complete gift, and the subsequent clause, while it might affect the period of division, did not affect the gift. It was provided that the revenue should be paid to the grandchildren up to the period of division, and power was given to the trustees to make advances out of capital. All these things pointed out that it was the intention of the truster to benefit the grandchildren. The vesting in them should be held to be a morte— Maitland's Trustees v. Macdermaid, March 15, 1861, 23 D. 732, opinion of Lord Cowan, 738; Wilson's Trustees v. Quick, February 28, 1878, 5 R. 697; Wood v. Neil's Trustees, November 6, 1896, 24 R. 105; Wallace v. Wallace, January 28, 1807, M. App. voce Clause No. 6; Ralston v. Ralston, July 8, 1812, 4 D. 1496, opinion of Lord Justice-Clerk

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Hope, 1500, and Lord Moncreiff, 1502; Alves' Trustees v. Grant, June 3, 1874, 1 R. 969.

Argued for the first and fifth parties—The date of vesting was the date when the youngest child of the respective families should attain the age of 25 years. As none of the three deceased grandchildren had survived this period no right vested in them. Consequently the shares which would have fallen to them if they had survived fell into the portion provided for each family respectively, with the exception of the share which would have fallen to Mrs Gibson, which share fell to her child—the fifth party—under the clause of substitution. The argument that there was no vesting a morte testatoris was founded on the following facts—(1) there was in this case a period of payment for each family; and (2) there was present in the deed words of survivorship. There was a double survivorship, a survivorship in the primary clause and a survivorship in the destination-over. Vesting was thus necessarily postponed till the period of division— Fyfe's Trustees v. Fyfe, February 8, 1890, 17 R. 450; Bogle's Trustees v. Cochrane, November 27, 1892, 20 R. 108; Adam's Trustees v. Carrick, June 18, 1896, 23 R. 828.

At advising—