Scottish Court of Session Decisions

John Dawson and others, the testamentary trustees of the deceased Robert Yule (the testator), first parties, Mrs Elizabeth Mechie or Deans, universal legatee of Margaret Yule, a niece of the testator, with consent, second party, James Will and another, as in right of legatees under the testator's trust-disposition and settlement, third parties, and the Royal Infirmary of Edinburgh as a residuary legatee of the testator, fourth parties, brought a Special Case for the opinion and judgment of the Court upon questions relating to the vesting of legacies left by the testator.

Robert Yule died on 10th December 1902, leaving a trust-disposition and settlement and codicil. The trust-disposition and settlement provided—“I Robert Yule … do hereby declare this writing to be my last will and testament for the disposal of my estate after my decease. My wife having unfortunately become blind and my son an inmate and patient in Morningside Asylum since the month of January 1876, I am compelled to request my friends kindly to act as trustees on behalf of my wife and son for the winding-up of my estate.… [ Then followed a nomination of trustees who were given powers to sell and dispose of the whole estate, both heritable and personal, or to retain and manage it until final winding-up, and to keep the testator's money securely invested, bearing interest for the objects of the trust.] … To my wife Mary Anne Low or Yule I bequeath an annuity of fifty pounds sterling (£50) per annum, payable in advance at periods to be agreed on. To my son Robert Low Yule I bequeath the remainder of the free income arising from my estate, to be applied in keeping him as comfortable as possible in the asylum, and if he should in the course of Divine Providence recover the full use of his mental faculties I desire my whole estate of every kind to be made over to him, and the trustees remunerated as aforesaid and discharged of their trust, but should my son not so recover, then after the death of both my wife and my son I wish my estate to be disposed of as follows—[ Then followed various bequests, which included]—to my nephew James Muir, residing at 40 Arundel Square, London, N., I bequeath the sum of Two hundred pounds sterling (£200); to my niece Margaret Yule, who has now come to live with us, if she will continue to live with and care for my wife while they may be spared together, I give and bequeath the small dwelling-house belonging to me and situated at 36 Bedford Street, Edinburgh, together with the sum of Two hundred pounds sterling (£200); also to the same Margaret Yule I bequeath the sum of One hundred pounds sterling (£100), to be paid to her at the first term of Whitsunday or Martinmas that happens after my decease without waiting for the final winding-up of the estate, and also a similar sum of One hundred pounds sterling to be paid to her at first Whitsunday or Martinmas as that happens after the death of my wife without waiting for final winding-up of the estate; to Mr Peter Cairns, residing at 4 Livingstone Place, Portobello, I beg to bequeath the sum of One hundred pounds sterling (£100); to Mr James Will senior, residing at 23 Howe Street, Edinburgh, I bequeath the sum of One hundred pounds sterling (£100); to Mr Edwin Wessels Watkins, son of J. L. Watkins, residing at 11 Duncan Avenue, Jersey City, United States, I bequeath the sum of One hundred pounds sterling (£100); to the Edinburgh Royal Infirmary I bequeath two-thirds ( 2 3)

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of the residue of my estate; to my trustees I bequeath the remaining one-third ( 1 3) of the residue after all legal claims and expenses shall have been paid, to be by them distributed among the charitable institutions of Edinburgh, in such manner and amounts to each as they shall judge for the best. This writing I again declare to be my last will and testament for the disposal of my estate after the decease of myself and of my wife and my son, hereby cancelling all previous writings, and reserving to myself power to make alterations or additions to it.”

The Special Case set forth—“4. The testator was survived by his widow and his son and by all the said individual legatees. The widow died on 10th August 1904. His son Robert Low Yule died on 28th July 1918 without recovering sanity. Margaret Yule continued to live with and care for the testator's wife until the testator's wife died, and she was paid £100 on the testator's death and also £100 on the death of the widow. She, however, predeceased Robert Low Yule, and died on 19th January 1910, leaving a will conveying all her estate to Mrs Elizabeth Mechie or Deans, wife of the said William Deans [the second parties]. James Will also predeceased Robert Low Yule, having died on 5th March 1918. His executor is James Will, formerly private, F Company, 79th Recruit Distributive Battalion, Dudhope Castle, Dundee, and presently residing at No. 44 Howe Street, Edinburgh. James Muir is also believed to have predeceased Robert Low Yule. On 11th January 1912 he assigned his interest in his said legacy to Michael Zeffert, 177 Maida Vale, London. The said Private James Will and Michael Zeffert are the third parties hereto. … Of the other individual legatees Peter Cairns survived Robert Low Yule, but it is not yet known whether Edwin Wessels Watkins did so. 5. No question has been raised or now arises between the parties with regard to the two legacies of £100 each to Margaret Yule, of which payment has been made as aforesaid. The predecease of the said three legatees, however, has raised a question as to the date of vesting of their respective legacies bequeathed under the said holograph will and codicil other than the said two legacies of £100 each.”

The second and third parties contended “that the true intention of the testator was to confer a vested right a morte testatoris in the said legacies. In any event they maintain that vesting took place in these legacies a morte testatoris, subject to divestiture only in the event of Robert Low Yule recovering the full use of his mental faculties. He died without doing so, and [they] are therefore entitled to the sums bequeathed to their respective authors.”

The fourth and first parties, so far as interested in the residue, contended “that vesting in the said legacies was postponed until the death of Robert Low Yule, and that in the events which have happened these legacies fall into residue.”

The questions of law were—“2. Did the said legacies or any of them vest a morte testatoris subject to defeasance in the event of Robert Low Yule recovering his full mental faculties? or 3, Was the vesting of said legacies, or any of them, postponed to the death of Robert Low Yule?”

Argued for the second parties—All the legacies vested a morte subject to a contingency which was not personal to any of the legatees, viz., in the event of the testator's son recovering his sanity. That contingency was not suspensive but was resolutive, for the testator's general intention was to give the beneficiaries the fullest possible benefit consistent with his desire for the disposal of his estate on his son's recovery, and there was nothing to indicate a desire to suspend vesting. Thus there was no destination-over such as there would have been in the case of a legacy to A whom failing to B, nor was there a survivorship clause. If there was nothing but the interposition of a liferent, a mere residuary clause did not suspend vesting— Haldane's Trustees v. Murphy, 1881, 9 R. 269, 19 S.L.R. 217. No doubt the condition was peculiar in that it was not the usual contingency of the birth of children. If the contingency had been the birth of children the legacies would admittedly have vested subject to defeasance. There was no difference in principle between that contingency and the present. Further, vesting subject to defeasance was not limited to the case where the contingency was the birth of children— Corbet's Trustees v. Elliott's Trustees, 1906, 8 F. 610, 43 S.L.R. 379; Coulson's Trustees v. Coulson, 1911 S.C. 881, 48 S.L.R. 814; Gilbert's Trustees v. Crerar and Others, 1877, 5 R. 49, per Lord Justice-Clerk Moncreiff at p. 56, 15 S.L.R. 32, 1878, 5 H. (H.L.) 217, per Lord Gordon at p. 220, 15 S.L.R. 776; M'Lay v. Borland, 1876, 3 R. 1124. The present case was covered by Drou's Trustees v. Peddie, 1850, 12 D. 825, per Lord Justice-Clerk Hope, and Beddy v. Courtney, 1887, 19 L.R. (Ir.) 245. The legacy did not vest in the testator's son subject to defeasance if he died insane, for there was no direct gift to him, and the condition on which he was to take was personal to him and could only be fulfilled in his life— In re Chappell's Trust, 1862, 6 L.T.N.S. 643. The nature of a condition as suspensive or resolutive depended on the testator's intention— Cumming's Trustees v. White, 1893, 20 R. 454, per Lord Young at p. 457, 30 S.L.R. 459. Lord M'Laren's opinion in Gardner v. Hamblin, 1900, 2 F. 679, at p. 685, 37 S.L.R. 486, though its terms were guarded, would cover the present case. Storie's Trustees v. Gray and Others, 1874, 1 R. 953, per Lord Mure at p. 955, 11 S.L.R. 552, was referred to. The same condition applied to fourth parties' legacy as applied to that of those parties.

Argued for the third parties—Those parties adopted the argument of the second parties. The whole question was one of intention, and the construction maintained by those parties was the natural one. The whole testamentary provisions were subject to the son's recovery, but if he did not recover the distribution was to be as if he had died.

Argued for the fourth parties—Fairly construed the contingency suspended vesting until the death of the testator's wife

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and son. The testator did not intend to benefit anyone until then. In the case of the legacy claimed by the second parties there was a further contingency also suspension of vesting. The trustees were to act for the wife and son; the emergence of other beneficiaries was only to take place after the death of the wife and son and there was no direct gift in favour of any legatee. If there was vesting subject to defeasance at all it was in the son. There was no difficulty caused by suspended vesting, for the residuary clause prevented the estate falling into intestacy. The doctrine of vesting subject to defeasance had never been applied in circumstances like the present and it was not to be extended beyond the decided cases— Bannatyne's Trustees v. Watson's Trustees, 1914 S.C. 693, per Lord President Strathclyde at p. 700 and Lord Mackenzie at p. 702, 51 S.L.R. 605; Johnston's Trustees v. Dewar, 1911 S.C. 722, per Lord Skerrington at p. 724, 48 S.L.R. 582; Gardner's case ( cit.). The authority of those cases had not been affected by Allan's Trustees v. Allan, 1918 S.C. 164, per Lord President Strathclyde at p. 167 and per Lord Johnstone at p. 168, 55 S.L.R. 212. Hood's Trustees v. Jack, 1919, 1 S.L.T. 208, was distinguished on the facts. A destination-over would prevent vesting subject to defeasance, and while a residuary clause was not so strictly adverse to vesting subject to defeasance it might exclude it— Steel's Trustees v. Steel, 1888, 16 R. 204, per Lord President Inglis at p. 208, 26 S.L.R. 146; M'Lay's case was very special— Turner v. Gaw, 1894, 21 R. 563, per Lord Low at p. 564, 31 S.L.R. 147.