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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Addie's Trustees v. Addie and Others [1913] ScotLR 586 (28 February 1913)
URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0586.html
Cite as: [1913] SLR 586, [1913] ScotLR 586
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SCOTTISH_SLR_Court_of_Session
Page: 586↓
Court of Session First Division.
v.
Facts:
A testator directed his trustees to hold one-seventh of the residue of his estate for the alimentary liferent of a certain son so long as he continued weak-minded, and declared that in the event (which happened) of his death without issue the capital of the said share of residue should fall and belong to two sons and three daughters of the testator, who were named, “equally among them and the survivors and survivor of them, the issue of any of them predeceasing being entitled equally among them, if more than one, to their deceased parent's share.” The trustees were given power in the event (which did not happen) of the son recovering his mental health to pay or make over to him the said share.
Held in a Special Case that the gift to issue was substitutional and not independent, that the contingency an
Page: 587↓
nexed to the gift to the sons and daughters that they should survive the liferenter applied also in the case of their issue, and accordingly that where children predeceased the liferenter and left issue, vesting only took place in those members of the issue who survived the liferenter and not also in those who, while surviving their parent, predeceased the liferenter.
George Addie, Ettrick Road, Edinburgh, and others, the trustees acting under the trust-disposition and settlement of the deceased Robert Addie of Viewpark, coal and iron master in Glasgow, who died on 10th January 1872, first parties; George Addie, Miss Marion Addie, Kloof Road, Cape Town, children of the testator; and George Dalziel, W.S., Edinburgh, curator bonis to Alexander Addie, St Ann's Heath, Virginia Water, Surrey, son of the testator, second parties; Mrs Mary Seton Jackson or Villiers, wife of Major Montagu Villiers, Roslin, and her brother and two sisters, the surviving children of Mrs Mary Addie or Jackson, a predeceasing daughter of the testator, third parties; Mrs Mary Slater or Baird Jackson, wife of J. S. Reardon, artist, London, executrix and universal legatory of her deceased husband James Baird Jackson, who was a son of Mrs Mary Addie or Jackson and a grandson of the testator, fourth party; and George Addie and another, the trustees acting under the trust-disposition and settlement of the deceased Alexander Dunbar Fyfe, who was the only child of the deceased Mrs Robina Addie or Fyfe, a daughter of the testator, fifth partie—presented a Special Case for the opinion and judgment of the Court as to the meaning of a clause in the testator's settlement dealing with the disposal of a share of the residue of his estate liferented by his eldest son Robert Addie, who died unmarried on 16th April 1911. James Baird Jackson survived his mother, but predeceased Robert Addie, the liferenter. Mrs Fife predeceased the liferenter, and her son, who survived his mother, also predeceased the liferenter.
By his trust-disposition and settlement the testator, on the narrative that on account of Robert Addie's mental weakness it was necessary to make special provision for his welfare and comfort, directed that the one-seventh share of residue to which he was entitled thereunder was, so long as he continued in a state of mental weakness and incapable of managing his own affairs, to be held invested by his trustees in their own names in trust for him in liferent for his liferent alimentary use allenarly, and for behoof of any child or children he might have, to be divided equally among them if more than one, in fee—“Declaring also that in the event of his death without issue the capital of the share of said residue hereby provided to him shall fall and belong to my said sons Alexander and George, and to my said daughters Mary, Marion, and Robina, equally among them and the survivors and survivor of them, the issue of any of them predeceasing being entitled equally among them if more than one to their deceased parent's share.”
The testator further provided that if his son Robert should be restored to a reasonably sound state of mental health and become capable of managing his own affairs and should continue in that state uninterruptedly for a period of not less than two years, his trustees should be entitled, if they deemed it prudent and advantageous to his interests, to pay or assign and make over to him absolutely the capital of the share of residue provided to him.
The Case stated —“The said Robert Addie, the testator's eldest son, was never married and died on the 16th day of April 1911. He continued in a state of mental weakness until the date of his death, and the testator's trustees never exercised the power conferred upon them of paying or assigning to him the capital of his share of the residue of the testator's estate.”
The second and third parties contended that on a sound construction of the trust-disposition and settlement of the testator the vesting of the share of residue liferented by his son Robert Addie was suspended until the liferenter's death, and that upon his death without issue and without the first parties having exercised the discretionary powers conferred upon them the said share vested in the second parties and the parties of the third part, in the proportions of one-fourth to each of the second parties and one-fourth to the third parties, per stirpes.
The fourth party contended that the late James Baird Jackson on the death of his mother took a vested interest in one-fifth of one-fifth of the fee of the share of the residue of the testator's estate liferented by the late Robert Addie, subject only to defeasance in the events, which did not happen, of the late Robert Addie dying leaving issue or of his recovering and the first parties exercising the power conferred upon them of paying over to him absolutely the capital of the share liferented by him. The fourth party accordingly contended that, as executrix and universal legatory of the deceased James Baird Jackson, she was now entitled to payment of one-fifth of one-fifth of the share of residue liferented by the late Robert Addie.
The fifth parties contended that the late Alastair Dunbar Fyfe on the death of his mother took a vested interest in one-fifth of the fee of the share of the residue of the testator's estate liferented by the late Robert Addie, subject only to defeasance in the events set forth in the contentions of the fourth party. The fifth parties accordingly contended that as the testamentary trustees of the said deceased Alastair Dunbar Fyfe they were now entitled to payment of one-fifth of the share of residue liferented by the late Robert Addie.
The questions of law were—“Did the share of residue liferented by the deceased Robert Addie vest only in (a) the children of the testator who survived the liferenter, and (b) the issue (who survived the liferenter) of the testator's child Mrs Jackson, who predeceased the liferenter? or, Did
Page: 588↓
it also vest in the issue (who survived their parents but predeceased the liferenter) of the testator's children Mrs Jackson and Mrs Fyfe, who predeceased the liferenter?” Argued for the second parties (whose argument was adopted on behalf of the third parties)—The condition of surviving the liferenter applied not merely to sons and daughters of the testator but also the issue of predeceasing sons or daughters. The gift to issue was merely substitutional, and was not, as in Martin v. Holgate, 1866, 1 E. & I. App. 175, an independent gift. The contention of the fourth parties that there was vesting in the issue on their parent's death subject to defeasance in the events of the liferenter dying without leaving issue or of recovering and of the trustees exercising their powers, did not involve defeasance merely in the happening of either of simple alternative events as in Coulson's Trustees v. Coulson's Trustees, 1911 S.C. 881, 48 S.L.R. 814, for there was in the latter alternative a double contingency which brought the case under the rule of Johnston's Trustees v. Dewar, 1911 S.C. 722, 48 S.L.R. 582.
Argued for the fourth and fifth parties—There was here a direct independent gift to such of the issue of the named sons and daughters who might predecease the liferenter as were alive at the date of their parent's predecease. Consequently the condition of surviving the liferenter which attached to the gift to the testator's children applied only to them and not to their issue — Martin v.Holgate cit. sup.), which was followed in In re Woolley, [1903] 2 Ch 206,and which would have been followed in Bank's Trustees v. Bank's Trustees, 1907 S.C. 125, 44 S.L.R. 121, but for the words “original and accruing,” which were held to show that the gift to issue was substitutional and not original. These parties took a vested interest on the death of their respective parents, subject to defeasance in the event of the liferenter leaving issue or recovering —the events which might occasion defeasance were alternative and not cumulative, and accordingly the case fell under the rule of Coulson's Trustees v. Coulson's Trustees ( cit. sup.), and not of Johnston's Trustees v. Dewar cit. sup.).
At advising—
In the case of Martin v.Holgate ( L.R. 1 E. & I. App. 175), which was founded on by the fifth parties, where it was held that the gift was original, the clause was in marked contrast to the present. There the testator devised his estate and effects to trustees to pay the proceeds to his wife for life, and “after her decease to distribute and divide the whole, &c., amongst such of my four nephews and two nieces” (naming them) “as shall be living at the time of her decease; but if any or either of them should then be dead leaving issue, such issue shall be entitled to their father's or mother's share.” It was held that the gift to the children was original, not substitutional, and that the daughter upon her father's death took a vested interest in the share which if he had lived he would have taken. The fact that the gift to the parent was contingent did not affect the nature of the gift to the issue, which was an independent bequest. The construction put upon the words “should then be dead leaving issue,” was that they were equivalent to “should then have died leaving issue.” The words “leaving issue” were held necessarily to apply to the period of the death of the nephews and nieces, and not to the death of the tenant for life. As Lord Westbury observed, the form of the gift was not elliptical, nor referential nor substitutional. I am of opinion that in the present case, according to the form of the gift, issue are just substituted for their parents, and the contingency of surviving the liferenter which applied to the parent applies equally to the issue. In the case of Bank's Trustees ( 1907 S.C .125) where Lord Low expressed the opinion that but for the word “accruing” the rule of Martin v. Holgate would have been applicable, the testator's direction to his trustees was upon the death or second marriage of his wife if she survived him to pay and make over the residue of his estate to such of his children as had arrived at the age of twenty-one years or as they respectively reached that age. The declaration was as follows—“In the case of provisions to children under these presents, if any child shall die, either before or after me, leaving lawful issue, and without having acquired a vested interest in such provision, such issue shall be entitled to the share or shares, original and accruing, which their parent would have taken by survivance, and the share of any child dying without leaving lawful issue shall be divided among the surviving children and the lawful issue of such children as may have died leaving such issue, in equal shares per stirpes.” In this case, as in Martin v. Holgate, the construction put upon the gift to issue but for the word “accruing” would have been that it was original and not substitutional. The form of the clause in the present case is different. I am accordingly of opinion that the first alternative of the question should be answered in the affirmative and the second in the negative.
Page: 589↓
These equal provisions out of residue to the seven children so provided for were not the subject of any general set of conditions and restrictions, but were dealt with more or less severally. The shares of Alexander and George were not affected by any conditions; that of his son William by one set of conditions; that of his son Robert by another set; and those of the three daughters by a general set of conditions applicable to them only.
This case is concerned with the share of Robert Addie, who was at the date of the settlement incapable of managing his own affairs. The trustees were directed to invest the share in their own names in trust for Robert in liferent allenarly and for behoof of his children in fee. But this was coupled with the following declaration, that in the event of his death without issue the capital of his share should fall and belong to his brothers Alexander and George and to his three sisters, equally among them, “and the survivors and survivor of them, the issue of any of them predeceasing being entitled equally among them, if more than one, to their deceased parents' share.”
On that statement I think that there can be little doubt that vesting was suspended, that there was no vesting in Robert himself, and no room for vesting subject to defeasance in the destinees over. But there is another clause which requires to be attended to. After the destination over above referred to there is added a power to the trustees, if they should deem it prudent and expedient and advantageous to his interests in view of his being restored to a reasonably sound state of health, to pay or assign and make over to Robert absolutely the capital of his share of residue, to be at his own unlimited disposal, and there is also a general declaration that the shares of residue provided to each of the above-mentioned children should bear interest from the date of his decease, but that the shares of his sons should not vest in them until they respectively attain the age of twenty-five years. I do not, however, see that in the case of Robert these provisions can do more than add another contingency to the destination over.
So far, I do not think that there is much difficulty in the case. The share of residue provided for Robert Addie in liferent in the circumstances which have occurred vested, in my opinion, at his death, and not sooner, in the children of the testator who survived him. But there remains a question whether the issue of predeceasing children take their deceased parent's share. One sister predeceased Robert and left children who survived her and also survived Robert, and also a child who survived her but predeceased Robert, and another sister Mrs Fyfe predeceased Robert and left a child who survived her but predeceased Robert.
The question therefore is whether survivance of Robert the Iiferenter was a condition of the issue of predeceasing children taking their deceased parent's share. In this aspect of the case we were much pressed by the decision in Martin v. Holgate in the House of Lords (1 E. & I. App. 175). I recognise to the full the authority of that decision, but if we are to follow it the result would be to compel us to determine that the issue of these predeceasing daughters took, at any rate not later than their parent's death, a vested interest in the share which, if the parents had survived, they might respectively have taken. I am obliged to say “might” and not “would” have taken, because, as already shown, there was nothing to vest in the parents unless and until they survived Robert, and unless, if and when that occurred, certain contingencies had been purified. Now it seems to me that there could be no more vesting in the issue of predeceasing chilren than in such children if they survived in what was still subject to two contingencies, viz., those of Robert leaving issue, and of his recovery and the trustees determining to pay over to him his share. I think, therefore, that the case bears to be distinguished from Martin v. Holgate (supra), and that the first question should be answered in the affirmative and the second in the negative.
Now the principles established by Martin v. Holgate are, I think, very clearly stated in two propositions in the judgment of Lord Westbury. In the first place, his Lordship assumes — indeed expresses at another part of his opinion—the perfectly well-established principle that a court of construction will construe plain words according to their plain meaning. But then, in the application of that doctrine to the particular question he lays down
Page: 590↓
Now on that reading of the words the learned Lords say you are not entitled to assume a contingency which the testator has not expressed merely because the gift to the parent has been subject to that contingency, because the two gifts are entirely separate and independent. There is no substitutional gift in favour of the issue of predeceasing parents. It is not a substitution, but there is an independent gift to children described as the issue of persons who shall die leaving issue during the existence of the liferent. But if you compare that with the words of the will which we have to construe it appears to me that the main principle of the House of Lords' judgment—that we are to give a plain meaning to plain words—leads to a different interpretation of the words before us from that which was put upon the words in Martin v. Holgate, because, in the first place, it is to be observed that there is but one contingency applicable to the whole disposition of the estate upon the death of the liferenter. It is upon the death of the liferenter that the capital of the share of the residue provided to him “shall fall and belong to my said sons Alexander and George, and to my said daughters Mary, Marion, and Robina, equally among them, and the survivors and survivor of them, the issue of any of them predeceasing being entitled equally among them, if more than one, to their deceased parents' share.” There is no gift to children upon any different contingency from the gift to the parents.
The main ground of the decision in Martin v. Holgate is that although the gift to the parents was limited by reference to the death of the tenant for life, the gift to the children was not so limited at all, and that it was not the duty of a court of construction to assume a limitation which the will did not express. But there is here but one reference to one period at which the gift is to take effect in favour of any of the legatees. There is no reference at all to the death of parents as determining the period at which the right of their children is to come into operation. On the plain construction of the words according to their plain meaning, what the trustees are asked to do is, upon the death of the liferenter, to distribute the estate among Alexander, George, Mary, Marion, and Robina, and the survivors and the children of the predeceasers. The direction, of course, assumes the existence of children or issue, as the case may be, who are capable of taking, or, in other words, it assumes the existence of issue at the date of distribution. If no such issue exist, then I confess I see nothing to displace the right expressly given to the survivors in the event of the predecease of any one of these five.
On the whole matter I agree with Lord Mackenzie, and I am not troubled by any doubt as to the possibility of our departing from the decision in Martin v. Holgate, which we are plainly not entitled to do. Then we answer the first alternative
Page: 591↓
The Court answered the first alternative of the question of law in the affirmative and the second alternative in the negative.
Counsel for the First and Second Parties— Fleming, K.C.— Black. Agents for the First Parties— W. & F. Haldane, W.S. Agents for the Second Parties— Tods, Murray, & Jamieson, W.S.
Counsel for the Third Parties — Blackburn, K.C.— A. J. Nicolson. Agents— Pearson, Robertson & Finlay, W.S.
Counsel for the Fourth and Fifth Parties— C. H. Brown. Agents — Wallace & Guthrie, W.S.