Scottish Court of Session Decisions

To determine their respective interests under the will of the deceased Mrs Margaret Hadden or Todd, who died on 8th October 1888, in a sum of £3500 on the expiry of a liferent thereof conferred by her will, a Special Case was presented for the opinion and judgment of the Court by Mrs Todd's trustees, first parties; the executors respectively of four sons of Mrs Todd and the children of one of these sons, Hadden

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William Todd, second parties; the representatives of two children of another of these sons, James Joseph Todd, who survived their parent but predeceased the life-renter, third parties; the children of another of these sons, Gavin Thomas Todd, and the surviving seven children of James Joseph Todd, all of whom survived the liferenter, fourth parties.

The Case stated, inter alia—“By the second trust purpose [of her trust-disposition and settlement the testatrix] provided with regard to a certain sum of £3500 resting-owing to her and her executors as follows, viz.—‘I direct and appoint that my said trustees and executors shall as soon as they receive payment of the said principal sum of three thousand, five hundred pounds sterling, invest the same in their own names as trustees foresaid.… And they shall pay or apply for the use of my son Edward Farquhar Todd the whole interest and revenue to be received by them on the said principal sum of three thousand, five hundred pounds sterling, and that from and after the day of my death and during all the days of his life thereafter. And on the death of my said son Edward Farquhar Todd my said trustees and executors shall uplift the said principal sum of three thousand, five hundred pounds sterling, and shall pay and divide the same to and among my four sons Gavin Thomas Todd, James Joseph Todd, Hadden William Todd, and Charles Todd, and the survivors or survivor of them equally, share and share alike: Declaring always that the children of a predeceasing parent shall in every such case take equally amongst them the share which would have fallen to his father had he been in life at the time: But declaring always that in case of my son, the said Edward Farquhar Todd, marrying and leaving a widow or children, neither such widow nor any such children whom he may leave shall have any claim to the said principal sum of three thousand, five hundred pounds sterling, or interest thereon, or to any part of said principal sum or interest: And further, declaring that if at my death or afterwards during the life of the said Edward Farquhar Todd any plan can be devised for securing to the satisfaction of my said trustees the interest of the said principal sum of three thousand, five hundred pounds sterling, to the said Edward Farquhar Todd during the remainder of his life, then the said principal sum may, upon such arrangement being made, be at once uplifted and divided among my other four sons in manner and in the terms before directed.’ By the third purpose of the said trust—disposition and settlement the testator directed as follows:—‘ Thirdly, the whole remainder and residue of my said estate and effects, real and personal, I appoint to be paid and made over to the said Gavin Thomas Todd, James Joseph Todd, Hadden William Todd, and Charles Todd, and the survivors or survivor of them equally, share and share alike: Declaring always that the children of a predeceasing parent shall in every case take equally among them the share which would have fallen to his father had he been in life at the time.’ … The said Edward Farquhar Todd died unmarried on 18th June 1920, until which date the testatrix's trustees paid over to or on behalf of him the whole free revenue arising from the invested capital. The said capital still remains in the hands of the testatrix's trustees. 4.… The four sons mentioned in the above-quoted trust purpose [were]—(1) Gavin Thomas Todd, who died on 15th May 1909 leaving a last will and testament. He was twice married and had five children, two of whom predeceased him, leaving three who survived him. (2) James Joseph Todd, who died on 5th September 1904 leaving a trust-disposition and settlement. He was survived by nine children, whereof seven survived their uncle Edward Farquhar Todd. His remaining two children died before the said Edward Farquhar Todd [leaving wills]. (3) Hadden William Todd, who died on 26th March 1906 leaving a will. He had eight children, all of whom survived both him and the said Edward Farquhar Todd. (4) Charles Todd, who died unmarried on 8th October 1910 leaving a will and codicil, under which the residue of his estate falls to be divided equally among the said children of Hadden William Todd.… (6) The second parties contend that upona sound construction of the testatrix's said second trust purpose her four sons—Gavin Thomas Todd, James Joseph Todd, Hadden William Todd, and Charles Todd respectively—obtained at the date of her death rights absolutely vested to equal one-fourth shares of the capital thereby disposed of. In the event of this contention not being sustained the executors of the said Charles Todd and the children of Hadden William Todd contend that a right to one-fourth share of the capital vested in Charles Todd at the date of death of the testatrix not subject to defeasance otherwise than by the birth and survivance of issue to him, which did not take place. 7. The third parties contend that the condition of survivance of Edward Farquhar Todd which attached to the gift in favour of the four sons of the testatrix did not attach to the gift in favour of their respective children, and that accordingly on the death of the said James Joseph Todd one— third share of the capital sum affected by the second trust purpose vested in his children then alive. The third parties therefore maintain that they are entitled to participate in one-third of the said capital sum. 8. The fourth parties contend that upon a sound construction of the testatrix's said trust purpose, and in the event which occurred of all her four sons—Gavin Thomas Todd, James Joseph Todd, Hadden William Todd, and Charles Todd—predeceasing the said Edward Farquhar Todd, no right or interest in the said capital sum vested in any of the said four sons. They contend further that in the events which occurred a right to three equal shares of the said capital sum vested in each of the families of the three sons who were survived by issue, and that the individual members of the three stirpes fall to be ascertained as at the date of

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the death of the liferenter, the said Edward Farquhar Todd.” [The word “third” in italics was substituted by amendment for the word “fourth” at the discussion in the Second Division.]

The questions of law included the followng—“1. Did the said four sons of the testatrix respectively obtain at the date of her death absolutely vested rights to the capital sum affected by her second trust purpose? 2. Did the said four sons of the testatrix obtain at the date of her death rights to the capital sum affected by her second trust purpose vested in them respectively, subject only to defeasance in the event of their respectively dying, survived by children, in the lifetime of the said Edward Farquhar Todd? 3. In the events which have occurred, did no right to the said capital sum vest in any of the said four sons of the testatrix, under the second trust purpose? 4. In the event of the first question being answered in the negative—Did the children of the testatrix's sons acquire vested rights in the said capital sum on the deaths of their respective fathers? or 5. Was vesting in the fee of the said capital sum postponed until the death of the said Edward Farquhar Todd?”

Argued for the fourth parties—Vesting was postponed till the death of the liferenter. At the date of distribution, therefore, no vesting had taken place in any of the four sons who had predeceased the liferenter— Addie's Trustees v. Jackson, 1913 S.C. 681, 50 S.L.R. 586. Neither did any share vest in those of their children who predeceased the liferenter, because the children were called as in place of their parents and not as original legatees, as was the case in Martin v. Holgate, 1866, L.R., 1 H.L. 175— Banks' Trustees v. Banks' Trustees, 1907 S.C. 125, 44 S.L.R. 121. In Campbell's Trustees v. Dick, 1915 S.C. 100, 52 S.L.R. 78, the children took as original legatees— per Lord Cullen at p. 110. Reference was also made to Cumming's Trustees v. White, 1893, 20 R. 454, 30 S.L.R. 459.

Argued for the second parties—Postponement of payment did not necessarily mean postponement of vesting. The survivorship clause here was not expressly referred to the death of the liferenter. Power to anticipate was a strong argument against postponement of vesting— Carleton v. Thomson, 1867, 5 Macph. (H.L.) 151, and per Lord Colonsay at p. 155; Ross's Trustees, 1884, 12 R. 378, 22 S.L.R. 232. The only object in postponing payment was to secure the liferenter and not to determine the beneficiaries. The whole deed should be looked at and not merely a particular clause— Gillespie and Others v. Kennedy, 1893, 4 S.L.T. 350.

Argued for the third parties—It might be a condition of the gift to the sons that they should survive the liferenter, but the same condition was not to be implied in the gift to issue of the sons. Unless such a condition was expressed it should not be inferred. The two bequests to sons and to the issue of sons in the present case were quite separable, and Martin v. Holgate, cit. sup., applied— Campbell's Trustees v. Dick, cit. sup.