Scottish Court of Session Decisions

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Cite as: [1905] ScotLR 42_426, [1905] SLR 42_426

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SCOTTISH_SLR_Court_of_Session

Page: 426↓

Court of Session Inner House Second Division.

Saturday, March 11 1905.

42 SLR 426

Stewart's Trustees

v.

Walker.

Subject_1Succession
Subject_2Trust
Subject_3Construction
Subject_4Destination to Children in Liferent and their Issue in Fee — Claim by Issue of Child Dead at Date of Settlement.
Facts:

A testator died predeceased by his wife and by one daughter, whom he knew to be dead at the date of his settlement, and survived by a son and two daughters, all having children, and a granddaughter, the child of his predeceasing daughter. By his trust-disposition and settlement, after making certain provisions in favour of this granddaughter, he conveyed his remaining estate to trustees to “hold and apply … for behoof of all my lawful children equally in liferent,… and for behoof of their respective issue equally per stirpes in fee.” Held that the provisions in favour of children and their issue applied only to children existing at the date of the settlement, and the issue of such children, and not to the daughter who had died prior to that date or her issue.

Headnote:

John Stewart, contractor, Paisley, died on 11th May 1903, leaving a trust-disposition and settlement whereby he conveyed his whole means and estate to his son William Stewart and others as trustees.

The testator was predeceased by his wife and one daughter, whom he knew to be dead at the date of his settlement. He was survived by a son William Stewart, and two daughters, Mrs Christina Stewart or Gillespie and Mrs Margaret Stewart or Walker, all three of whom had children, and by a granddaughter, Christina Walker, the only child of his predeceased daughter Mrs Mary Stewart or Walker. The testator was on affectionate terms with all his grandchildren, and frequently visited them.

By the fourth purpose of his trust-disposition and settlement the testator provided as follows:—“My trustees shall hold Beechwood Cottage, Houston, to and for behoof of my granddaughter Miss Christina Walker, residing in Beith, and after paying for the management, repairs, taxes, insurance, and all other expenses in connection with said property, accumulate the rents thereof, and pay therefrom to William Walker, hotel-keeper, Beith, her father, or other legal guardian for her behoof during her pupilarity, and herself or them during her minority, such sums therefrom and at such times as my trustees consider proper, and on her arrival at majority convey and pay said property and such accumulations as may remain in my trustee's hands to her, whom failing, her lawful issue equally on their attaining twenty-one years
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of age, or to their legal guardians when under that age, and failing issue said property to merge into and form part of my estate.”

By the fifth purpose of his trust-disposition and settlement the testator provided as follows:—“My trustees shall, after paying for the management, repairs, taxes, insurance, and all other expenses in connection with my remaining estate, hold and apply the same, including the interest or other annual produce thereof, and shares original and that may accrue, to and for behoof of all my lawful children equally in liferent during all the days and years of their respective lives, and for behoof of their respective issue equally per stirpes in fee, and in case of the death of any of my children without issue who shall survive and obtain a vested interest as after mentioned, the share destined to him or her and his or her issue shall accrue to the survivors equally in liferent, or the survivor in liferent, and their, his, or her respective issue equally per stirpes in fee: And I declare that in case any of my children shall die leaving issue, such issue while under age shall be entitled to the annual proceeds of the provisions destined to them in fee, and the fee or capital of such provisions shall vest in and be paid or conveyed to such issue on their respectively attaining twenty-one years of age, or to their respective legal guardians when under that age, and on the death of their respective father or mother, whichever event shall happen last, and not sooner, and such issue while under twenty-one years of age being entitled to have the annual income paid to their respective father or other legal guardians while in minority, or applied by my trustees for their support, education, or benefit.”

The value of the Beechwood Cottage subjects referred to in the fourth purpose was £425 or thereby. The net income therefrom for the year ending Whitsunday 1904 was £22, 14s. 1d. The value of the residue divisible under the fifth purpose was estimated at £6450, and the net income for the year ending Whitsunday 1904, exclusive of the foresaid income derived from Beechwood Cottage, amounted to £240. From this sum fell to be paid certain annuities bequeathed by the third purpose of the settlement, amounting to £20, making the net free income available for division £220.

A question having arisen as to the true meaning of the testator's settlement, a special case was presented for the opinion and judgment of the Court.

The parties to the case were—(1) The trustees acting under the trust-disposition and settlement; (2) William Walker, as tutor to his daughter Christina Walker; and (3) the children and grandchildren of the testator with the exception of his granddaughter the said Christina Walker.

The questions of law for the opinion and judgment of the Court were—“(1) Has Christina Walker an interest along with the testator's other grandchildren per stirpes in the residue of his estate disposed of under the fifth purpose of his said trust-disposition and settlement? Or (2) Is her interest in his succession confined to the interest in Beechwood Cottage provided in her favour by the fourth purpose of said trust-disposition and settlement?”

The second party maintained and argued that, in addition to her interest in Beechwood Cottage, Christina Walker was entitled to an equal one-fourth share of the residue divisible under the fifth purpose of the settlement. The taking the fee by children did not depend on their parent being alive to take the liferent; the gift to the children was a substantive gift independent of the liferent of the parent— Sturrock v. Binny, Nov. 29, 1843, 6 D. 117.

The third parties maintained and argued that Christina Walker's rights were confined to her interest in Beechwood Cottage. The children for whom the testator made provision in the fifth purpose of his settlement were children alive at the date of his settlement, and did not include a predeceasing child, for whose issue he had made a separate provision in the fourth purpose of his settlement.

Judgment:

Lord Kyllachy—I am of opinion that the first question must be answered in the negative; and I think that in so doing we give effect both to the intention of the testator and to the words of the settlement. On ordinary principles of construction the provisions of the settlement in favour of children and their issue are conceived in favour only of children existing at the date of the settlement and the issue of such children; and, as might be expected in that view, the destinations or devolutions, and instructions as to management which followed have all reference to deaths which may occur in the future, and not to deaths which the testator knew to have already occurred. It is admitted that the testator knew when he made his settlement, that one of his daughters—the daughter in question—was already dead; and this removes any difficulty which might have existed if he had not so known, or if it had been uncertain whether or not he knew of her death. If he had not known, I do not profess to say how that might have affected the construction of the settlement; but it being admitted that he did know, I think any difficulty is removed.

Lord Kincairney—I am of the same opinion. The whole question turns upon the interpretation of the fifth clause of the settlement. By that clause the truster gives a liferent to all his children, and it is pointed out that that phrase could not be meant to include the mother of the second party, because at the date of the settlement she was dead. The argument further is that the gift of the fee to “their respective issue” must mean to the issue of the children to whom the liferent had been given, and that therefore the second party, as the issue of one of the children to whom a liferent was not given, can have no claim. She is already expressly provided for by

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the fourth clause of the settlement, and therefore there is no room for the argument that it may have been the intention of the truster to include her in the gift of the fee. I therefore agree that the first question should be answered in the negative.

Lord Pearson—I agree in the judgment proposed. It appears to me that as all the provisions of the fifth purpose which refer to the death of the testator's children are de futuro, it is impossible to hold that the provisions include the case of a child known to the testator to be dead at the date of the will. I also think it clear that in the expression “their respective issue,” occurring in the gift of the fee, the word “their” relates back to the children on whom a liferent had just been conferred; and it is certain that these cannot have been intended to include a child then already dead within the knowledge of the testator.

The Lord Justice-Clerk and Lord Young were absent.

The Court answered the first question in the negative.

Counsel:

Counsel for the First Parties— Macmillan. Agent— W. Kinniburgh Morton, S.S.C.

Counsel for the Second Party— Chree. Agent— J. M. Pole, Solicitor.

Counsel for the Third Parties— Cullen. Agent— W. Kinniburgh Morton, S.S.C.
1905