Scottish Court of Session Decisions

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Cite as: [1904] SLR 41_284, [1904] ScotLR 41_284

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SCOTTISH_SLR_Court_of_Session

Page: 284↓

Court of Session Inner House Second Division.

Tuesday, February 4. 1904.

41 SLR 284

Ogle's Trustees

v.

Ogle.

Subject_1Succession
Subject_2Vesting
Subject_3Direction to Pay on Expiry of a Liferent to Children of Liferenter “and the issue of such of said children as may have died leaving issue.”
Facts:

A testatrix directed her trustees to hold the residue of her estate for J. in liferent, and on his death “to pay over to the children of the said J, equally among them and the issue of such of said children as may have died leaving issue, the fee or capital of the residue and remainder of said estates, declaring that the issue of any child or children of the said J. who may have predeceased leaving issue shall take equally among them the shares or share to which their parent or respective parents would have been entitled if alive.” Two of J.'s children survived the testatrix but predeceased the liferenter without issue. Held that the shares of these children had vested in them.

Headnote:

Mrs Margaret Ogle died in December 1885 leaving a mutual settlement entered into between her and her husband, who had predeceased her, and a codicil thereto, executed by her in pursuance of powers conferred upon her by the settlement as the survivor of the spouses.

By their mutual settlement Mr and Mrs Ogle directed their trustees to pay the residue of their estate to Mr Ogle's brother John Ogle, whom failing “to his children alive at the time of the decease of the survivor” of them; and they reserved power to the survivor to alter or revoke their settlement in whole or in part.

By the codicil already referred to, executed by Mrs Ogle after her husband's death, she revoked the residuary clause of the settlement, and directed the trustees thereunder to hold the residue for John Ogle in liferent, and should he have predeceased her, or on his death in the event of his survivance, she directed them to “pay over to the children of the said John Ogle, equally among them and the issue of such of said children as may have died leaving issue, the fee or capital of the residue and remainder of said estates, declaring that the issue of any child or children of the said John Ogle who may have predeceased leaving issue shall take equally among them the share or shares to which their parent or respective parents would have been entitled if alive.”

Page: 285↓

John Ogle survived Mrs Ogle, and died in March 1903, survived by seven children and by issue of one of his children who predeceased Mrs Ogle. He was predeceased by two of his children Robert Graham Ogle and Arthur Wesley Ogle, who had survived Mrs Ogle, and who left no issue.

In these circumstances a special case was presented for the opinion and judgment of the Court by (1) Mrs Ogle's trustees, (2) the children of John Ogle who survived him, and the issue of his child who predeceased Mrs Ogle, and (3) the personal representatives of Robert Graham Ogle and Arthur Wesley Ogle.

The second parties maintained “that no vested interest had been taken by the said Robert Graham Ogle and Arthur Wesley Ogle under the said codicil at the date of their decease, and that the whole of the residue fell to be divided among themselves the second parties, in terms of said codicil.”

The third parties maintained “that two shares of the residue of Mrs Ogle's estate vested in Robert Graham Ogle and Arthur Wesley Ogle upon the death of Mrs Ogle, and that they the said third parties were entitled to receive said shares.”

The question of law was—“Had Robert Graham Ogle and Arthur Wesley Ogle at the dates of their respective deaths a vested interest in one-tenth share each of the residue of the trust estate which passed to their personal representatives to be administered as parts of their estates respectively.”

At the hearing the following authorities were cited for the third parties— Matheson's Trustees v. Matheson's Trustees, February 2, 1900, 2 F. 556, 37 S. L.R. 409; Thompson's Trustees v. Jamieson, January 26, 1900, 2 F. 470, 37 S.L.R. 346; Sword's Trustees v. Main, July 17, 1902, 4 F. 1005, 39 S.L.R. 846. For the second parties— Laing v. Barclay, July 20, 1865, 3 Macph. 1143; Bowman v. Bowman, July 25, 1899, 1 F. (H.L.) 69, 36 S.L.R. 959; Parlane's Trustees v. Parlane, May 17, 1902, 4 F. 805, 39 S.L.R. 632.

Judgment:

Lord Trayner—Some cases of this class involve questions of some nicety, but I cannot say that I have felt difficulty in disposing of the questions now before us. The testatrix left the residue of her estate to be divided in this way—the life-rent to John Ogle, and the fee to John Ogle's children. She directed her trustees to hold the residue of her estate, and there are only two purposes for which they are directed to hold it. The first is to pay John Ogle the alimentary liferent of that estate, and the second directs the distribution of the fee. The question here raised is whether any right in that fee vested in a child who predeceased the liferenter without leaving issue. The direction to the trustees is to pay the fee of the estate at a certain time, and that time is postponed plainly for the purpose of protecting the alimentary liferent and for no other purpose. When that purpose is served accordingly, the estate is to be divided. Now, among whom? It is to be paid over “to the children of John Ogle equally among them.” I think the testatrix had no intention of depriving any one of John Ogle's children of an equal share of that estate. On the contrary, I think she expressly says that her intention and desire is that every one of John Ogle's children should take a share. She goes on to provide that in the event of a child predeceasing the term of payment leaving issue, the issue shall take their parents' share. There is no provision with regard to the share of a child who had predeceased the term of payment without issue, but such child had his share conveyed to him by the words, “pay over to the children of John Ogle equally among them.” There is no survivorship clause, and therefore I am of opinion that these two shares vested in the two sons who survived the testatrix but predeceased the term of payment. I would therefore answer the question in the affirmative.

Lord Moncreiff—I am of the same opinion. I think that upon a sound construction of the deed of revocation the right to one-tenth share each of the residue vested in Robert Graham Ogle and Arthur Wesley Ogle on their surviving the longest liver of the spouses, although they predeceased their father John Ogle, who also survived the spouses and enjoyed the liferent. Questions of this kind necessarily depend upon the peculiar terms of the deeds under interpretation, and that is the construction which I put upon this deed, especially taken in connection with the mutual settlement of the spouses. Under that mutual settlement, on the death of the longest liver of the spouses the residue was to go to John Ogle if he survived the spouses, and failing him, to his children alive at the time of the decease of the survivor of the spouses. Under that deed it will be noticed no provision is made for the event of any child of John Ogle predeceasing the longest liver of the spouses and leaving issue. The husband died, and under the powers conferred upon her his widow revoked that settlement of residue and made two important alterations upon it. The first was that she cut down John Ogle's interest in the event of his surviving her to a liferent. The second was that she made express provision for the case of children of John Ogle predeceasing her leaving issue, and to prevent a lapse, she directed that the share which would have fallen to such children should go to their issue. I do not read the passage in which she makes this alteration as intended to prevent a lapse by a child of John Ogle surviving her and predeceasing his father. It is not said that the issue of children who may have died before the liferenter shall succeed. There is no date mentioned, and I read the words as meaning “shall die before me.” I think, looking to the whole passage, that the true meaning of it is that it is intended to prevent a lapse by any of the children of John Ogle predeceasing the widow and leaving issue, and this view gains strength from the consideration that the only reason why there was any postponement of payment was to provide for the liferent. On the whole matter I am of opinion that the right

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to these shares was vested in Robert and Arthur Ogle.

The Lord Justice-Clerk concurred.

Lord Young was absent.

The Court answered the question of law in the affirmative.

Counsel:

Counsel for the First and Third Parties— Smith, K.C.— Balfour. Agents— Mackenzie & Black, W.S.

Counsel for the Second Parties— Younger. Agents— J. & J. Ross, W.S.
1904