Scottish Court of Session Decisions

William Turnbull, Daldowie, Old Monkland, who died on 20th December 1869, left a trust-disposition and settlement dated 23rd October 1866, whereby he conveyed his whole estate to certain trustees for the purposes therein specified.

By the second purpose of his settlement the testator provided a liferent of his whole estate to his widow.

The third purpose was as follows:—“In respect I gave outfits to my sons John Turnbull, now deceased, and James Turn-bull, farmers at Daldowie (my whole children), I direct my trustees on the decease of my widow, or on my death in

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the event of my surviving her, to hold the whole residue of my estate, one-half for behoof of the issue of my said deceased son John Turnbull in fee, and the other half for behoof of my said son James Turnbull in liferent and his issue in fee, the share of each son's family to be divided among them and their issue per stirpes in such proportions as may be pointed out by any writing under their ancestor's hand, and failing such appointment equally among them per stirpes. … And I further declare that the shares of the fee of my estate shall not vest in the issue of either of my said sons during the subsistence of either of the liferents thereof above provided, nor until such issue shall respectively attain the age of majority, but it shall be in the power of my said trustees, if they think proper, to pay to or expend for behoof of any minor not only the income, but also any part or the whole of the capital of any share of my estate which will apparently fall to such minor, for the purpose of maintaining, clothing, and educating him or her, or by way of apprentice fee, capital wherewith to commence business, outfit on marriage, or such other objects as my trustees may deem advisable and proper, any such advances being always imputed to account of and deducted from the share of my estate to which the party receiving the same, or on whose account they are made, will apparently become entitled, and such advances out of capital during the subsistence of my widow's liferent and during the lifetime of my son, the ancestor of such minor, shall be always with their consent: Declaring further, that should any of my beneficiaries conduct themselves so as not to meet the approbation of my trustees, it shall be in the power of my said trustees, if they think fit, to limit the whole or a part of the interest of such beneficiary to a liferent of the whole or a part of his or her share, and to suspend the vesting of the fee of such share, either in whole or in part, during his or her life, and to hold the same for behoof of his or her issue in such proportions as may be pointed out by any writing under his or her hand, and failing such appointment, equally among such issue per stirpes, with power also to my trustees, after having exercised the above power, to withdraw and cancel the restriction at pleasure.”

The testator was survived by his wife, one son (the said James Turnbull), and by three grandchildren—the only children of his other son John Turnbull, viz., William Turnbull, Fanny Jackson Turnbull, and Elizabeth Turnbull. John Turnbull predeceased the testator without having made any appointment of his prospective interest in the testator's estate. The testator's widow died on 11th July 1870. Fanny Jackson Turnbull died on 9th November 1879 in minority and unmarried. William Turnbull, the testator's grandson, died on 10th July 1898, also unmarried, survived by his mother and by his sister Elizabeth. The testator's son James Turnbull died on 18th November 1888, survived by a widow and nine children, and leaving a trust-disposition and settlement, by which he conveyed his whole estate to certain trustees therein named for behoof of his widow and children. The testator's estate, which was at his death wholly moveable quoad succession, amounted to about £7000. After the death of Fanny Jackson Turnbull, one-fourth of the residue was held by the testator's trustees for William the testator's grandson, and with accumulations of income during his minority, namely, until 31st December 1882, when he attained majority, amounted at his death to about £2800 of capital value. On 29th December 1880 the trustees under the testator's deed of settlement executed a minute in the following terms, viz., “In terms of the power conferred on them by the deed of settlement of the deceased, the trustees resolved to limit, and hereby accordingly limit, the interest of the children of the late John Turnbull, the testator's son, to a liferent of their respective shares, and hereby suspend the vesting of the fee of such shares in whole during the respective lives of the said children, or until this restriction is withdrawn or cancelled by the trustees, all in terms of the deed of settlement.” The trustees subsequently on 28th and 29th December 1882 executed a formal deed of declaration in the same terms. So far as regards the share of William, the grandson, the said restriction and suspension was never withdrawn or cancelled. William Turnbull, the grandson, left a holograph writing in the following terms, addressed to the law-agent in the trust:—“ West Farm, May 2nd 1893. Mr John Turnbull, writer. Dear Sir—You will as usual discharge the duties in connection with Daldowie estate for the benefit of my sister Eliza, reserving the one-half of said accumulated interest to be given to my mother, after paying funeral expenses. Wm. Turnbull.” The “Daldowie estate” was the trust estate held under the testator's deed of settlement, and the “accumulated interest” therein referred to was that accruing subsequent to 31st December 1882, when William Turn-bull attained majority. Elizabeth Turnbull having been decerned executrix-dative qua sole next-of-kin of her brother William Turnbull, the said holograph writing was so far acted upon that the accumulated interest, amounting to £215, 19s. 11 1 2d., less funeral expenses, was divided equally between William Turnbull's mother and Elizabeth Turnbull.

Questions having arisen with reference to the share of the trust-estate of which William Turnbull the grandson enjoyed the liferent, a special case was presented for the opinion and judgment of the Court.

The parties to the special case were (1) the trustees under the testator William Turnbull's trust-disposition; (2) the trustees under James Turnbull's trust-disposition and settlement; (3) Elizabeth Turnbull; (4) the widow of John Turnbull.

The parties were agreed that in the case of the grandson William there were sufficient grounds for the trustees exercising

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their power of restriction and suspension, and that the power conferred on them by the testator was validly exercised in so far as he was concerned by the minute and the deed of declaration before referred to, but that there was no ground in fact, so far as the third party was personally concerned, for the restriction and suspension. Accordingly, the trustees intimated that they now formally withdrew and cancelled the restriction and suspension so far as affecting the share of the third party.

The second parties maintained that, upon the death of the grandson without issue, the share liferented by him fell into intestacy of the testator, and belonged to his heirs in mobilibus ab intestato as at his, the testator's, death, and that consequently one half thereof fell to the second parties as in right of James Turnbull, one of the two children of the testator, and the other half to the representatives of John Turn-bull, the other son who predeceased the testator.

The third party maintained that the said share belonged to her in respect ( a) that as soon as the said deed of restriction was executed the fee thereof vested in her, or otherwise, that the fee of said share, notwith standing said deed of restriction, vested in her brother subject to defeasance only in the event of his leaving issue; or ( b) that she was entitled to it under the holograph writing of 2nd May 1803, by which her brother William Turnbull effectually tested upon the same, and bequeathed it to her, subject to payment of the one-half of the accumulated interest therein referred to, to the fourth party, which had already been made; or ( c) that she was entitled to said share as executrix—dative qua sole next-of-kin of her said brother under and by virtue of the testament-dative in her favour.

The fourth party concurred in the contention of the third party.

The questions of law for the opinion and judgment of the Court were—“(1) Does the share of the testator's estate, of which the grandson William Turnbull enjoyed the liferent, fall into intestacy of the testator, and now fall to be paid to the extent of one-half to the second parties, and to the extent of one-half to the representatives of John Turnbull? Or (2) Is the fee of said share vested in the third party, and does it now fall to be paid wholly to her?”

Argued for the second parties—William Turnbull, the grandson, never took more than a liferent of his share. By express direction of the testator nothing could vest in a grandson till he became 21; and the power of restriction conferred on the trustees was exercised prior to that date. There was here no independent gift of fee; William's right depended entirely on the view which the trustees might take of his conduct, and it was admitted that their exercise of the power to restrict his interest to a liferent was valid and proper— Dalglish's Trustees v. Bannermaws Executors, March 6, 1889, 16 R. 559; Muir's Trustees, v. Muir's Trustees, March 19, 1895, 22 R. 553. Accordingly, the share liferented by him fell into the intestate succession of his grandfather.

Argued for the third party—The fee of William Turnbull's share of the trust-estate had vested in him on his reaching majority, by virtue of the testator's absolute direction to divide the share of each son's family among them. Alternatively, the fee had vested in him, subject to defeasance only in the event of his leaving issue, which he did not do. The only purpose was to protect William's succession for the benefit of his children.— Dalglish's Trustees, supra; Lindsay's Trustees v. Lindsay, December 14, 1880, 8 R. 281; Dunlop's Trustees v. Sprot's Executor, March 9, 1899, 1 F. 722. As he left no issue, his share passed to his sister, either under his will or as his executrix-dative. But if it were held that William took no vested right, then the fee had vested in Elizabeth as the sole survivor of the children of John Turnbull.