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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bleakley's Trustees v. Johnstons [1907] ScotLR 483 (28 February 1907)
URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0483.html
Cite as: [1907] SLR 483, [1907] ScotLR 483
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SCOTTISH_SLR_Court_of_Session
Page: 483↓
Court of Session Inner House Second Division.
v.
Facts:
Terms of a holograph trust-disposition and settlement giving discretionary power to trustees after the death of the liferentrix to sell a certain property and divide proceeds amongst the fiars, which were held to postpone vesting till the exercise of the discretion.
John Bleakley, boot and shoemaker, Edinburgh, by his holograph trust-disposition and settlement, dated 3rd February 1902, conveyed his whole estate, heritable and moveable, to trustees. He directed his trustees, inter alia, “to dispone, convey, and make over that house belonging to me, the south half-flat, being the top half-flat No. 2 (two) Lauriston Terrace, together with the cellar thereunto belonging in Lauriston Lane, Edinburgh, to my niece Margaret (Maggie) Armstrong or Johnston, wife of John Johnston, in liferent, and to her four youngest children in fee, namely, Alice, Harry, Herbert, and George, in fee, at the death of the said Maggie Johnston the house is to be either sold or let, I hope the trustees will do best for the children, rents could go to their benefit when young, it I think would be a pity to sell while they are young, money would soon be fritted away. But when it is realised to be divided thus into five shares—Alice one share, Harry one share, Herbert called after my dear wife's father two shares, the remaining share to George. Should any of the children die before division is made their share, except they have a family, be divided between the survivors, these presents are given subject to regularly paying feu-duty 35s. per anon and keeping the house in good repair together with mutual repairs on tenement allowcate on feu-duty not on rents; should my death and the above Margaret Johnston's death take place while the above children are under age it would be much better to let the house till they were older.”
Bleakley, who died on 9th December 1905, was survived by the said Mrs Margaret Armstrong or Johnston and by her said four youngest children, who were born, Alice on 13th February 1888, Harry on 14th June 1890, Herbert on 24th June 1895, and George on 7th May 1897.
Questions having arisen as to the administration of the trust, a special case was presented, to which William M'Culloch Ramsay and others, the trustees under Bleakley's trust-disposition, were the first parties, and the said Alice Johnston, Harry Johnston, Herbert Johnston, and George Johnston were the third parties. The question of interest to the parties who were second parties to the case was settled.
The case stated—“With regard to the question between the first and third parties, the third parties maintain that, subject to Mrs Johnston's liferent, the fee of the top half-flat at 2 Lauriston Terrace, Edinburgh, vested in them a morte testatoris in the proportions of one share to Alice Johnston, one share to Harry Johnston, two shares to Herbert Johnston, and one share to George Johnston. The first parties on the other hand maintain (1) that no vesting takes place in the second parties until the half-flat at 2 Lauriston Terrace has been sold, and that with regard to the time when this sale should take place, the first parties, subject always to Mrs Johnston's liferent,
Page: 484↓
have an absolute discretion; or (2) that vesting is postponed till the termination of Mrs Johnston's liferent, and takes place then only in those of the second parties or their issue who survived that date.” The following questions, inter alia, were submitted for the opinion and judgment of the Court:—“(2) Under Mr Bleakley's trust-disposition and settlement, does the fee of the shares of the half-flat at 2 Lauriston Terrace, Edinburgh, falling to the third parties, vest in them a morte testatoris in the proportions mentioned in the said trust-disposition and settlement? (3) In the event of the second question being answered in the negative, is vesting in the third parties postponed until the first parties in their absolute discretion shall sell the half-flat at 2 Lauriston Terrace, Edinburgh? Or, is it merely postponed until the death of the liferenter Mrs Johnston?”
Argued for the first parties—Vesting was postponed till they, in the exercise of their discretion, sold the said property. Further, subject to Mrs Johnston's liferent they had an absolute, or at all events a reasonable, discretion as to when they should do so. The only possible meaning of the words the testator had used was that until they exercised their discretion no share vested in the third parties— Thorburn and Others v. Thorburn and Others, February 16, 1836, 14 S. 485; Wilkie v. Wilkie, January 27, 1837, 15 S. 430; Howat's Trustees v. Howat and Others, December 17, 1869, 8 Macph. 337, 7 S.L.R. 157; Macdougall v. M'Farlane's Trustees, May 16, 1890, 17 R. 761, 27 S.L.R. 638; White's Trustees v. White, June 20, 1896, 23 R. 836, 33 S.L.R. 660. The survivorship clause was referable to the period of division— Young v. Robertson, February 14, 1862, 4 Macq. 314. There was no repugnancy in it; the destinations must be read as a whole.
Argued for the third parties—(1) The fee vested a morte testatoris. They were entitled to take the clause of division as completing the original clause. The survivorship clause was absolutely repugnant to, and inconsistent with, the original gift of fee, and, if so, no matter how clearly it might be expressed, it must be disregarded. Here they were in the category of such cases as Miller's Trustees v. Miller, December 19, 1890, 18 R. 301, 28 S.L.R. 236; Simson's Trustees v. Brown, March 11, 1890, 17 R. 581, 27 S.L.R. 472; Smith's Trustees and Others, March 9, 1894, 31 S.L.R. 538, per Lord M'Laren, at p. 541. (2) Assuming they were wrong in their first contention, in any event vesting took place at the death of the liferentrix, their mother Mrs Maggie Johnston. It was not to be presumed that vesting was to be left to the discretion of the trustees. Moreover, the general rule was that a legacy vested at the time when the trustee's declaration as to payment might have been effective. Mrs Johnston's death was the earliest time at which realisation could take place. They referred to Scott v. Scott's Executrix, January 27, 1877, 4 R. 384, 14 S.L.R. 272, and Rutherford v. Easton's Trustees, July 2, 1894 (O.H.), 12 S.L.T. 184. In the latter case Lord Kyllachy said that the strong presumption against vesting depending on discretion had always been applied save in the four exceptional cases of Thorburn ( sup. cit.), Wilkie ( sup. cit.), Howat ( sup. cit.), and M'Dougall ( sup. cit.), which were those founded on by the first parties. There was only one period contemplated at which the trustees could exercise their discretion, and that was the death of the liferentrix. They also referred to Steel's Trustees v. Steel, December 12, 1888, 16 R. 204, 26 S.L.R. 146; Maclean's Trustees v. Maclean, June 29, 1897, 24 R. 988, 34 S.L.R. 746.
At advising—
In such a case it is of great importance to endeavour to get at the leading intentions of the testator rather than to endeavour to spell out a meaning from each of the various phrases used in the deed.
The general intention regarding No. 2 Lauriston Terrace was to give the liferent of the house or half flat in question to his niece Mrs Johnston and the fee to her children. Not knowing what the ages of the children might be at the death of their mother, he did not direct his trustees then to sell the house, but to “sell or let” it; he was anxious that it should not be sold if the children were at that time too young to take care of the proceeds of the sale, for fear the money “would soon be fritted away,” and he was desirous, apparently, that if the children were so young as not to be able to manage money matters the house should be let and the rents applied by the trustees for their benefit “till they became older.” He accordingly resolved to leave the time of the sale entirely in the discretion of the trustees, as they would be in a position at and after the death of the liferentrix to judge what it would be best to do in the interests of the children. But when the house is “realised” his directions are clear and explicit—the proceeds are to be divided into five shares, Herbert to get two shares and the other three children one each. Then follows this very explicit clause:—“Should any of the children die before division is made their share, except they have a family, be divided between the survivors.”
To my thinking the scheme of the settlement is simple and clear. The trustees are to determine the date of realisation, and a division is to be made among the then surviving children and the issue of any who have predeceased that period.
The question now arises, when does vesting of their respective shares take place in the children?
It cannot be at the death of the testator, because there is a survivorship clause and
Page: 485↓
It was maintained, however, for the third parties that to hold that vesting did not take place till the division of the estate was in contravention of the rule of construction which has led the Court in several decided cases to avoid a construction which would fix an uncertain date for vesting, or would make vesting depend on the act of the trustees or other third parties. Now, undoubtedly, where there are no indications of intention to the contrary, that construction of a deed will be preferred which fixes a definite period for vesting, yet, like all similar rules its application is displaced by the express or implied intention of the testator to a contrary effect, and I think there is such contrary intention expressed in the present deed. Effect has frequently been given by the Court to the intention of testators in making the period of vesting of their estates depend upon the period of division or the discretion of their trustees. Examples of this occur in the decided cases of Thorburn, 14 S. 485; Wilkie v. Wilkie, 15 S. 430; Howat's Trustees v. Howat, 8 Macph. 337; and White's Trustees, 23 R. 836. In other cases, such as MacLean v. MacLean's Trustees, 24 R. 988, it has been held that the main intention of the testator was that his children and the issue of deceased children should all take their shares of his estate as from his death, and that the clauses regarding the division of the residue and the like were merely directions as to the administration of the estate and did not detract from the main purpose of the deed. The case of Scott v. Scott's Executors, 4 R. 384, in some respects very closely resembles the present, and there it was held that vesting took place in the children and issue of children at the date of the widow's death as the earliest period at which the trustees might, in the exercise of their discretionary powers, have made a division of the estate, and was not postponed till the actual exercise of these powers; but in that case the sole object of the testator in postponing the division of the estate till after a lapse of some time after the death of the annuitant was for the purpose of paying off heritable debts on it, but at the same time the trustees were empowered to sell the heritable subjects under burden of the heritable debts at any time after the death of the annuitant, and it thus plainly appeared that any delay that was directed to take place in the division was purely, so to speak, for administrative purposes, and was not with the view of postponing either vesting in or payment to the children a moment after the death of the widow. In the present case, as I have already pointed out, the postponement of realisation and division by the trustees was specially intended by the testator to provide for the case of the children being too young at the date of their mother's death to manage the proceeds of the property should it then be realised and divided. Accordingly, with this intention, the testator, in my opinion, made the time of realisation and division, and consequently of vesting, wholly dependent on the discretion of the trustees, which he directs them to exercise in certain circumstances by postponing the division, although in other circumstances they may, of course, see it to be their duty to realise and divide immediately on the death of the widow. I may add that there is not, in my opinion, any obligation on the trustees to delay realisation and division till all the children attain majority. At and after the widow's death they must just exercise their discretion as to the best course to follow in view of the interests of all the children and of the estate generally.
On the whole matter, therefore, I am of opinion that the second question should be answered in the negative, the first alternative of the third question in the affirmative, deleting, however, the word “absolute,” and the second alternative of the third question in the negative; it is unnecessary to answer the first question owing to the parties having come to an agreement with regard to the matter there dealt with.
Page: 486↓
Where unequivocal language is used, it is not safe to refuse to construe that language according to its ordinary meaning simply because there are strong reasons for believing the intention of the testator to have been otherwise.
I accordingly agree that the questions should be answered in the way proposed by Lord Ardwall.
The Court answered the second question in the negative; the first alternative of the third in the affirmative, deleting the word “absolute”; and the second alternative of the third in the negative.
Counsel for the First Parties— Morton. Agent— W. R. Ramsay, Solicitor.
Counsel for the Third Parties— Fenton. Agent— Joseph Chalmers, S.S.C.