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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Crighton and Others (Forrest's Trustees) v. Macdonald and Others (Mitchell's Trustees) and Others [1904] ScotLR 41_421 (17 March 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0421.html
Cite as: [1904] ScotLR 41_421, [1904] SLR 41_421
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SCOTTISH_SLR_Court_of_Session
Page: 421↓
Court of Session Inner House First Division.
v.
Facts:
A mutual trust-disposition and settlement by spouses provided for payment, on the death of the survivor of them, of the interest of a sum of money to each of three of the wife's sisters, and on the death of each of the sisters, or the death of the surviving spouse, if any, of the sisters predeceased, for payment of the three several principal sums among the children of the said three sisters and a deceased sister, subject to apportionment, and failing apportionment then equally among them, “the issue of such of the said children as shall predecease the foresaid respective terms of payment being entitled to the share which would have fallen to their predeceasing parent.”
Held (following dicta in Bowman v. Bowman, 1 F. (H.L.) 69, 36 S.L.R. 959) that vesting was postponed until the term of payment.
By antenuptial contract of marriage between William Forrest, younger of Easter Ogil, and Miss Agnes Marnie, daughter of James Marnie, Esquire, of Deuchar. dated 24th June 1850, the said Miss Agnes Marnie conveyed to trustees the whole means and estate then belonging to her, or to which she might succeed during the marriage, for the purpose, inter alia, of payment of the income of the estate to the spouses during their joint lives, and to the survivor during his or her life. It was provided that in the event of there being no issue of the marriage it should be competent for Mrs Forrest, subject to her husband's liferent, by any deed or last will to assign or bequeath all or any part of the trust funds to such person or persons as she should think fit. There was no issue of the marriage.
By mutual trust-disposition and settlement dated 7th February 1872, and recorded 16th December, 1873, Mr and Mrs Forrest disponed and assigned to trustees the whole means and estate which should belong to
Page: 422↓
them respectively or to which they might have right at their respective deaths, in trust for the purposes therein specified, inter alia—“ Third. On the death of the survivor of us the said Mrs Agnes Marnie or Forrest and William Forrest, for payment to each of my (the said Mrs Agnes Marnie or Forrest) three surviving sisters, Isabella Marnie, Charlotte Marnie, and Mrs Jemima Marnie or Gardner, wife of the Reverend Alexander Gardner, minister of the parish of Brechin, during all the days of their respective lives, of the interest or annual produce of the sum of one thousand pounds sterling, payable in equal portions at the terms of Whitsunday and Martinmas, commencing the first payment at the first term after the death of the survivor of us, for the period preceding. Fourth. At the first term of Witsunday or Martinmas after the death of each of my said three sisters, or at the first term of Whitsunday or Martinmas after the death of the survivor of us, if my said sisters or any of them predecease us, for payment of the fee of the said three several principal sums of one thousand pounds among the children of my said three sisters and my deceased sister Mrs Mary Marnie or Sandeman, in such proportions, at such times, and under such conditions as I may appoint by a writing under my own hand, without the concurrence of my said husband, though he may be then in life, and failing such appointment, then among the said children equally, the issue of such of the said children as shall predecease the foresaid respective terms of payment being entitled to the share which would have fallen to their predeceasing parent. Sixth. The whole means and estate hereby conveyed, excepting always the three foresaid sums of £1000 mentioned in the third and fourth purposes hereof, and the paraphernalia of my said wife, shall, subject always to the liferent right hereby conferred on her, belong to and be subject to the disposition of me the said Wiliiam Forrest.” Mrs Forrest died on 4th November 1873, survived by her husband and her three sisters. James Wilkie Crighton, sometime farmer at Mains of Finhaven, Forfarshire, and afterwards residing at Guildford, Surrey, and others, the trustees under the mutual trust-disposition and settlement, accounted to Mr Forrest for the rest of the estate and retained the sum of £3000, the income from which they continued to pay him. She was also survived by the following nephews and nieces, viz.—(1) James Marnie Sandeman, (2) Mrs Mary Sandeman or Mitchell, (3) Mrs Jane Morrison Sandeman or Thomson, the three children of her deceased sister Mrs Mary Marnie or Sandeman, and (4) James Alexander Gardner, the only child of her sister Mrs Jemima Marnie or Gardner.
Miss Charlotte Marnie died unmarried on 21st April 1886 and Miss Isabella Marnie also died unmarried on 7th June 1886. Mrs Gardner died on 17th December 1890.
James Marnie Sandeman died without issue on 2nd May 1883, leaving a will in favour of his sisters Mrs Mitchell and Mrs
Thomson, dated 11th October 1862. Mrs Mitchell died without issue on 25th November 1900 leaving a trust-disposition and settlement under which William Kid Macdonald and others were the trustees. Mrs Thomson was still living at the date of this case.
James Alexander Gardner died unmarried and intestate on 25th September 1887, and was succeeded by his father the Reverend Alexander Gardner who died on 12th April 1893 leaving a trust-disposition and settlement.
On the death of Mr Forrest on 16th November 1902 differences arose as to the rights of parties in the £3000 held by the trustees under the mutual trust-disposition and settlement, turning upon the question when vesting took place. A special case was therefore prepared and presented to the Court, in which the trustees under the mutual trust-disposition and settlement were the first parties, Mrs Mitchell's trustees and Mr Gardner's trustees were the second parties, and Mrs Jane Morrison Sandeman or Thomson the sole surviving niece was the third party.
The question of law submitted for the opinion of the Court was—“Did the three sums of £1000 each vest on Mrs Forrest's death in her four nephews and nieces then alive? or Was vesting postponed until the death of the liferenter Mr Forrest, so that the whole sum vested in the third party?”
The second parties maintained that vesting took place on Mrs Forrest's death, and argued—There was a general presumption in favour of immediate vesting, and though the term of payment was here postponed it was recognised that the time for actual payment was not of importance in the question— Thompson's Trustees v. Jamieson, January 26, 1900, 2 F. 470, at p. 493, 37 S.L.R. 346; Ross's Tustees, December 18, 1884, 12 R. 378, 22 S.L.R. 232. That was especially the case where as here it was a class, viz., nephews and nieces, who were to be favoured. The postponement of payment was therefore not to be pressed. There was recent authority far these parties' contention— Matheson's Trustees, February 2, 1900, 2 F. 556, 37 S.L.R. 409; Ogle's Trustees v. Ogle, February 4, 1904, ante, p. 284; Waugh's Trustees, March 3, 1904; and the case of Bowman v. Bowman, July 25, 1899, 1 F. (H.L.) 69, 36 S.L.R. 959, was decided the same way though on a specialty, and though some dicta in it might be considered against. These dicta, however, were not to be pressed too far, for they were not intended to establish a universal rule overriding previous cases, but merely to guard against the evil that the cases were getting too stereotyped and not sufficient weight was being given to the testator's intention. The presumption against intestacy was favourable, for if the opposite contention were upheld there might have been intestacy under it.
The third party maintained that vesting only took place on the death of Mr Forrest, and argued—The wording of the settlement was in favour of vesting being postponed, for there was no other term mentioned
Page: 423↓
save the term of payment. The question was also foreclosed by decision— Bowman cit. dicta; Parlane's Trustees v. Parlane, May 17, 1902, 4 F. 805, 39 S.L.R. 632; Gavin's Trustees v. Johnston's Trustees, July 20, 1903, 40 S.L.R. 879. At advising—
The destination of the £3000 in question is very clearly expressed. To each of Mrs Forrest's surviving sisters she bequeathed the interest or annual produce of one thousand pounds, payable at the usual terms, and as to the capital she provided that at the first term after the death of each of her said three sisters, or at the first term after the death of the survivor of the spouses in the case of any of the sisters predeceasing the spouses, payment of the said three principal sums of one thousand
pounds should be made to the children of her said three sisters and her deceased sister Mrs Sandeman, subject to apportionment, and failing apportionment then “among the said children equally, the issue of such of the said children as shall predecease the foresaid respective terms of payment being entitled to the share which would have fallen to their predeceasing parents.”
There is no provision of survivorship and no destination-over except to the issue of the testator's nephews and nieces in the terms which I have quoted. Mrs Forrest was survived by two nephews and two nieces, children of her sisters, but three of these died in the lifetime of Mrs Forrest, and therefore predeceased the term of payment. The sole survivor is Mrs Jane Sandeman or Thomson, the third party to the case. The representatives of a deceased nephew and a deceased niece are the second parties to the case, and their claim is founded on the assumption that the fee of the fund of £3000 vested in such of Mrs Forrest's nephews and nieces designed in the will as survived the testator Mrs Forrest.
If the question were open to consideration it seems to me that there is a good deal of equity in the view that a share vested in each nephew or niece who survived Mrs Forrest, at least to the extent that these persons might dispose of their shares in case of their death without issue. But the effect of a substitution of children to parents was considered by the House of Lords in the recent case of Bowman, and although the decision of the House in the particular case was in favour of vesting, because the context showed that such was the testator's meaning and intention, their Lordships expressed clear opinions to the effect that a destination in favour of issue of the immediate legatees ought to be construed like any other destination, and that prima facie a substitution of issue to parents was suspensive of vesting. Now in the present case I have been unable to find in the testamentary deed of Mr and Mrs Forrest any clauses or expressions which tend to displace the ordinary construction. This is not even left to implication, because the substitution is in express words to the issue of such of the “said children as shall predecease the foresaid respective terms of payment.” The term of payment as to the entire fund (in the events which happened) is the death of Mr Forrest, 16th November 1902, and it follows from the principle of interpretation which has been settled by the highest authority that in the absence of any controlling words of a contrary tendency no one could acquire any right to the fee of the £3000 who did not survive Mr Forrest.
I am therefore of opinion that we ought to answer the question in terms of the second alternative—that is, in favour of the third party to the case.
The
The Court answered the first alternative question in the negative, and the second in the affirmative.
Counsel for the First Party— Carnegie. Agents— Lindsay, Howe, & Company, W.S.
Counsel for the Second Parties— Inglis. Agents— J. C. & A. Steuart, W.S.
Counsel for the Third Party— Macphail. Agents— Lindsay, Howe, & Company, W.S.