Scottish Court of Session Decisions

This was a special case for the opinion and judgment of the Court upon certain questions arising as to the meaning and effect of the trust-disposition and settlement of Mrs Anne Craigie Alston, wife of Robert Findlay Alston.

The testatrix died on 3rd May 1874. By the third purpose of her settlement, dated 6th September 1867, she directed her trustees to “hold, pay, and apply” a fund specified for behoof of her husband in liferent, and after his death “to and for behoof of” four persons named in fee. One of the fiars named was George Alston of Craighead. The third purpose declared that in the event of any of the fiars “dying before the vesting of the provisions herein conceived in their favour, leaving lawful children, the share which would have fallen to such deceaser shall fall to and be equally divided among his children, and in the event of (any of the fiars) dying before the vesting of the said provisions without leaving lawful issue, the share which would have fallen to such deceaser shall fall unto and be divided equally among the survivors, together with the issue of any of them who may have predeceased leaving issue.… Declaring that, in the event of the said George Alston not having more than three children at the date of my death, then, and in that event, the one-half of the provisions hereinbefore conceived in his favour shall fall and belong to the said James Brown Alston (another of the fiars) and his issue, in like manner as the provision hereinbefore provided to him.”

At the date of the death of the testatrix George Alston had more than three children. He survived the testatrix and died in 1884 survived by the liferenter, and by two sons and six daughters, and leaving a trust-disposition and settlement.

Robert Findlay Alston, the liferenter, died in 1885, and after his death the trustees of Mrs Anne Craigie Alston, by arrangement, paid one-fourth of the fund, which had been liferented by him, to the trustees acting under George Alston's trust-disposition and settlement for behoof of whom it might concern.

By the last purpose of his trust-disposition and settlement George Alston directed the whole residue of his estate to be divided in the following proportions, viz.—Twenty-two parts to his eldest son, eighteen parts to each son other than the eldest, and ten parts to each of his daughters. When the time came for his trustees to give effect to that direction, questions arose as to the manner in which the said payment from Mrs Anne Craigie Alston's estate should be apportioned amongst George Alston's children, and this special case was accordingly presented for the opinion and judgment of the Court.

The parties to the special case were (1) George Alston's testamentary trustees, (2) his two sons, and (3) his six daughters.

The first and second parties contended that the provision conceived in favour of the said George Alston of Craighead in the said trust-disposition and settlement of the said Mrs Anne Craigie Alston vested in him at her death, so that the first parties, his trustees, were bound to treat that provision as part of the residue of his estate, and, as directed by his said general trust-disposition and settlement, to apportion it amongst his children in the following manner, viz.—twenty-two-hundredths to the said George Alston, eighteen-hun-dredths to the said Robert Charles Wallace Alston, and ten-hundredths to each of his six daughters.

The third parties contended that no right of fee in the said provision vested in the said George Alston of Craighead, their father, and accordingly that the said provision could form no portion of the estate dealt with under his trust-disposition and settlement; that upon a proper construction of the trust-disposition and settlement of the said Mrs Anne Craigie Alston, vesting was postponed until the period of division, i.e., the death of the

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said Robert Findlay Alston, the liferenter; and that their father having predeceased the said period of division, the provision destined to him vested not in him but in his eight children as conditional institutes, and fell to be divided equally among them.

The questions of law were—“(1) Did the provision in favour of the said George Alston of Craighead in the trust-disposition and settlement of the said Mrs Anne Craigie Alston, vest in him a morte testataris? or (2) Did the said provision vest in his children as conditional institutes at the period of division?”

Argued for the first and second parties—The present case was distinguished from the typical case of suspension of vesting by a survivorship clause, as in Young v. Robertson, February 14, 1862, 4 Macq. 314, and Bryson's Trustees v. Clark, November 26, 1880, 8 R. 142, 18 S.L.R. 103. In these cases there was no gift until the period of division; here the words of gift applied both to the liferent and the fee. The provision for the event of George Alston not having more than three children at the date of the death of the testatrix contained a clear indication of intention that vesting should be a morte testatoris; and the general rule as to postponement of vesting by a survivorship clause readily yielded to contrary intention— Bowman v. Bowman, July 25, 1899, 1 F. (H.L.) 69, 36 S.L.R. 959. If two readings were reasonable, that was to be preferred which favoured immediate vesting— Webster's Trustees v. Neil, March 2, 1900, 2 F. 695, 37 S.L.R. 493; Thompson's Trustees v. Jamieson, January 26, 1900, 2 F. 470, 37 S.L.R. 346. The first question should be answered in the affirmative.

Argued for the third parties—The survivorship clause which followed the gift of the fee referred to the period of distribution, until which period vesting was postponed. The clause referring to the death of the testatrix was intended to take effect only in the event of George Alston not having more than three children at her death, and the effect which it was to have in that event was expressly defined as being to increase the expectancy of James Brown Alston; that event not having occurred, the clause could not be relied upon as indicating any intention whatever apart from it. That clause therefore had no effect on the period of vesting, and could not control the earlier words of the deed according to which vesting was postponed— Webster's Trustees v. Neil, cit. sup.; Neville v. Shepherd, December 21, 1895, 23 R. 351, 33 S.L.R. 248. The case was governed by the decision in Young v. Robertson, cit sup.