Scottish Court of Session Decisions

Miss Olivia Sophia Sinclair, third daughter of the late Sir George Sinclair, Bart., and Lady Camilla, his wife, died at Thurso Castle upon the 24th January 1894, leaving a last will and testament dated 20th May 1892 and relative codicil dated 11th May 1893. By the will and testament the testatrix, inter alia, bequeathed to her executors “the sum of £6000 … upon trust that they or the survivors or survivor of them, or the executors or administrators of such survivor or other, the trustees or trustee for the time being of this my will (hereinafter called my trustees or trustee) hall invest the same in their or his names or name,… and shall pay one-third part of the annual income of the said sum of £6000 or the investments for the time being representing the same to … Emelie Johnstone, the wife of my nephew William James Hope Johnstone, during her life or until she shall marry again: And I declare that, subject and without prejudice to the trust in favour of the said Emilie Johnstone … my trustees and trustee shall hold the capital and income of the said trust premises in trust for all the children or any the child of the said William James Hope Johnstone, who being sons or a son shall attain the age of twenty-one years, or being daughters or a daughter shall attain that age or marry under that age; and if more than one in equal shares;… Provided always, and I declare that my trustees or trustees may at any time or times raise any part or parts not exceeding in the whole one-half of the then expectant or presumptive or vested share of any child of the said William James Hope Johnstone … under the trusts of this my will, and pay or apply the same for his or her advancement or benefit, as my trustees or trustee shall think fit, but so that no such part or parts shall be raised or applied as aforesaid during the existence of any prior interest or interests therein under this my will without the consent in writing of the person or persons having such power, interest, or interests.”

The codicil contained the following declaration:—“I declare that my said trustees or trustee shall hold my said residuary estate upon the trusts following—that is to say,… as to another equal third part or share thereof upon the like trusts, and with and subject to the like powers, provisoes, and declarations in all respects for the benefit of Emilie Johnstone, the wife of my said nephew William James Hope Johnstone, and the issue of the said William James Hope Johnstone, as are in my said will declared and contained in their favour concerning the sum of £6000 and the investments for the time being representing the same.”…

On 12th March 1903 William James Hope Johnstone and his wife Emelie Johnstone were both alive and had six children, three of whom had attained majority and three of whom were still in minority. On that date the three elder children raised an action against (1) the trustees under Miss Sinclair's testament and codicil; (2) the three minor children of William James Hope Johnstone; and (3) him as their curator. In this action the pursuers, inter alia, sought to have it found and declared that under the will and codicil “there was conferred on and became vested in and payable to each of the pursuers at the dates of their respectively attaining majority, but subject always … to the liferent of their mother Emilie Johnstone, wife of the said William James Hope Johnstone, at least one-sixth share of the sum of £6000, and one-sixth share of one-third of the residue of the estate of the said Miss Olivia Sophia Sinclair.”

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Defences to the action were lodged by Miss Sinclair's trustees.

On 17th March 1904 the Lord Ordinary ( Pearson) dismissed the action.

Opinion.—[ After narrating the facts and the declaratory conclusion of the summons quoted above]—“The rule of construction to which the pursuers appeal as entitling them to this declarator is that which received effect in the cases of Buchanan v. Buchanan's Trustees (May 26, 1877, 4 R. 755, 14 S.L.R. 503) and Boss v. Dunlop (May 31, 1878, 5 R. 833, 15 S.L.R. 580), and in the English cases of Emmett ( 1880, L.R. 13 Ch. Div. 484) and Knapp v. Vassall ([1895], 1 Ch. 91). The principle is thus stated by Lord President Inglis in the case of Ross—‘The general proposition is, that if a testator desires that a fund should be distributed in equal or different proportions among a class of children at a particular day, only the children in existence when that day arrives can receive a share, for they are the only children in existence at the day when payment is to be made.… The general rule is based on no stronger foundation than this—that you cannot carry out the direction to distribute at the particular time specified without giving the benefit solely to those who are in existence at that time, but if the testator has indicated with sufficient clearness that he intended others to participate, you must give effect to that intention.’ The rule as settled by the English authorities is thus stated (Williams' Executors, 9th ed. ii, 944)—‘No child born after the period of distribution has any claim … and the children are excluded who are born after the fund becomes distributable in respect of any object or member of the class, or after the vesting in possession of any of the shares.’

“The same test was applied in all the cases I have mentioned. The date sought for in all of them was the date contemplated by the deed for the division of the fund—the date when it or any share of it was distributable or payable. In the case of Buchanan's Trustees the deed provided that on the death of the liferentrix the trustees should hold and apply the fund and the income thereof to and for behoof of all the lawful children of A, ‘payable the several children's shares to the sons on their attaining twenty-five, and to the daughters on attaining that age or being married.’ In the case of Ross the trustees were directed to divide and apportion the fund among nephews and nieces and their descendants, declaring that the provisions of minors should not vest and be payable until they respectively attained majority. In Emmett's case the shares were directed to be conveyed, assigned, paid, or transferred to sons on their respectively attaining twenty-one, and to daughters on their respectively attaining that age or being married. And in Knapp v. Vassall it was declared that the shares of the settled fund should be for the portions of such younger children as should attain twenty-one, or being daughters should marry, the share of each child to be paid on vesting or the death of the survivor of A and B, whichever should first happen, “The question then is, what is the period of distribution or payment under this will? Has it yet arrived as to any of the shares? In my opinion it has not. I think the will clearly indicates that for anything that has yet happened there is to be no payment or division at present. In the first place, the trust is for all the children of Mr Hope Johnstone who shall attain the age of twenty-one, or being daughters shall marry under that age, in equal shares. This, of course, is not conclusive, but it is a strong indication, to begin with, that the pursuers' view would not further but would defeat the intention of the testatrix. Then the trust is ‘to hold,’ not even ‘to hold and apply,’ as it was in the case of Buchanan's Trustees, and there is an entire absence of any words which could be construed into a direction to divide or to pay, in any of the events which have yet happened. In the third place, it is expressly declared that the trustees ‘may at any time or times raise any part or parts not exceeding in the whole one-half of the then expectant or presumptive or vested share of any child … under the trusts of this my will, and pay or apply the same for his or her advancement or benefit, as my trustees shall think fit, but so that no such part or parts shall be raised and applied as aforesaid during the existence of any prior interest therein under this my will without the consent in writing of the person having such prior interest.’ This clause negatives the idea that a vested share any more than an expectant or presumptive share is payable as matter of right to any child so long as any prior interest subsists, and it clearly contemplates that, subject to the trustees’ discretionary power to make advances, all such shares are to remain in the hands of the trustees until the death or second marriage of Mrs Hope Johnstone, or possibly the death of Mr Hope Johnstone. I apprehend that this is a purpose which will receive effect, as it is in furtherance of the original intention expressed in the will, namely, that all the children of Mr Hope Johnstone who may attain twenty-one, or being daughters may marry, shall benefit in equal shares. It is true that the trustees, in making advances to a child under the clause just quoted, are restricted to one-half of the child's share, and this involves a calculation as to the amount of the child's share. But I apprehend that the trustees, in making this calculation for the purpose of any given advance, would simply take account of the number of children in existence when the advance was made, leaving any excess or defect to be rectified when the balance of the share becomes payable.

“I hold that no shares are presently payable to the pursuers, and therefore that the action must be dismissed.”

The pursuers reclaimed, and at the discussion in the Inner House it was intimated that the liferentrix Mrs Emilie Johnstone had by minute agreed to a restriction of the nexus over the fund save as over one-third thereof.

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Argued for the reclaimers—It was settled law that once the period of distribution had arrived trustees were not entitled to continue to hold the estate in the interest of post nati— Wood v. Wood, January 18, 1801, 23 D. 338. In England it was the rule that a bequest to all the children of anyone when they should attain twenty-one fell to be divided amongst the children in esse when the eldest attained that age— Andrews v. Partington, 1791, 3 Brown's Chan. Cas. 401; Gimblett v. Parton, 1871, L.R. 12 Eq. 427; Emmet's Estate ( supra), Knapp's Settlement ( supra). That rule was equally applicable to Scotland— Buchanan v. Buchanan's Trustees ( supra); Boss v. Dunlop ( supra). It followed that the children here who had attained majority were entitled to payment of the shares so far as the fund was not tied up by the liferent.

Argued for the defenders and respondents—The cases cited were not applicable, because in them there was a direction to pay while here there was not, but on the contrary a direction to hold. The rule laid down in Andrews v. Partington was no part of Scots law. The only rule was the intention of the testator, and it was clearly her intention that all the children of William James Hope Johnstone who should attain majority, or being daughters should marry, should take a share of the fund. The trustees must therefore continue to hold the fund until his death.

At advising—