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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Thomson - Attorney General (Campbell - Dr. Lushington v. John, Richard Tod, George, Walter, Janet, and Margaret Scougall - Serjeant Spanki - Forbes [1835] UKHL 2_SM_305 (31 August 1835)
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SCOTTISH_HoL_JURY_COURT
Page: 305↓
(1835) 2 S&M 305
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1835.
2d Division.
No. 9.
v.
[
Subject_Testament — Trust — Fee and Liferent — Condition. —
A testator conveyed his property to trustees, to be held in part lor a married daughter for her liferent use allenarly and in fee for her children, and failing of children for her other heirs and assignees whatsoever. She had four children, who all predeceased her,—two of them only having issue, and two having assigned their interest to their husbands:—Held (affirming the judgment of the Court of Session), on the death of the liferentrix, that no right of fee had previously vested in any of the children so as to be transmissible by them.
John Fraser, writer to the signet in Edinburgh, married Jean Brown, and had four children,—Margaret, Jean, Ann, and Simon: Margaret was never married; Jean was married to the Rev. Mr. Walker, and Ann to Mr. Rae; Simon was in a state of imbecility. On the 7th of May 1788 Mr. Fraser executed a disposition and deed of settlement, by which he conveyed to trustees “all lands and heritable and real estate whatsomever which now does or shall at my death belong to me, and to which I amor shall be anywise entitled; and the whole writings, rights, and securities of and
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Mr. Fraser died in 1795, and was survived by all his children. Simon died first without issue and Margaret soon after him. She and her executors drew her fourth share, and also a share of the fourth provided to Simon. The widow (Mrs. Fraser) died a few years after her husband. Jean (Mrs. Walker) had four children, viz., Magdalene, who married Richard Scougall, merchant, Leith; Jane, who married James Thomson; John, who married, and died in 1808, leaving a daughter; and Robert, who died in 1811 unmarried. Magdalene (Mrs. Scougall) had six children, and died in 1826. Her sister Anne (Mrs. Thomson) died without issue in 1830.
Their mother (Mrs. Jean Fraser or Walker) survived all her children, and when she died she left a deed of settlement in favour of trustees. The appellant was James Thomson the husband of her daughter Jane. The respondents in this appeal were Mrs. Walker's grandchildren, viz., the six children of Magdelene
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On the death of Mrs. Walker a dispute arose as to the rights of parties under Mr. Fraser's deed of settlement, and in order to have it settled his trustees brought an action of multiplepoinding in the Court of Session. Claims were lodged:—1. By Mrs. Walker's trustees, who alleged that the funds had vested in her, and were conveyed by her deed of settlement to them. 2. By the appellant, James Thomson, the husband of Jane the daughter of Mrs. Walker, founding on his jus mariti and a contract of marriage; and he maintained that a share of the funds had vested in his wife, and that although she had predeceased her mother, the life—rentrix, yet it had been transferred to and vested in her. 3. By Richard Scougall, who maintained a similar plea. 4. By her children, who alleged that no part of the funds vested in their mother, or in their aunt Mrs. Thomson, so as to be transferred to their husbands, seeing that they did not survive Mrs. Walker the liferentrix, and that on the principle of the conditio si sine liberis, they were entitled to the fund as substituted for the mother. 5. By Mrs. Birch a similar claim was made, as substituted for her father; and she separately pleaded, that, as the funds had been invested in heritable subjects at the death of Mr. Fraser, and had continued to be so, she had right as heir at law both to her father's share and the share of her uncle Robert.
The Lord Ordinary reported the question on Cases, and on the 11th March 1834 the Court pronounced
_________________ Footnote _________________
1 Ann Fraser (Mrs. Rae) was not a party to any of the proceedings, as her children had settled with Mr. Fraser's trustees.
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“The Lords, on the report of Lord Medwyn, Ordinary, having advised the state of this process of multiplepoinding with the Cases and additional Cases for the several claimants, and heard counsel thereon, repel the claim upon the fund in medio on behalf of the trustees of the late Mrs. Jean Fraser or Walker, as the same is stated on the record, and decern; and before farther answer, allow the other claimants to be farther heard by their counsel at the bar, in the course of the next session; and reserve consideration of all claims and questions as to expenses.”
Parties were accordingly heard, and on the 9th of July 1834 the Court pronounced this interlocutor:—
“The Lords having heard counsel in præsentia on the remaining points of this cause, and having resumed consideration thereof, repel the claims on the fund in medio for James Thomson, and Richard Scougall the father, and decern; and remit to the Lord Ordinary to proceed accordingly; and find no expenses due.” 1
Mr. Thomson appealed.
Appellant.—The appellant's wife had a vested interest under the trust settlement of her grandfather John Fraser, which admitted of being conveyed by her during the lifetime of her mother, and was effectually conveyed to the appellant by his marriage contract.
That she had such an interest is clear, whether regard be had to the voluntas testatoris, or to the legal import of the terms employed in framing the trust settlement.
_________________ Footnote _________________
1 12 S., D., & B., p. 910. No appeal was made by Mrs. Walker's Trustees or by Mr. Scougall.
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It was the obvious intention of Mr. Fraser that the beneficial interest in one fourth share of the trust funds should belong to the children of his daughter; that this interest should belong to the children in equal proportions; and that their right should not depend on the contingency of their surviving their mother, or be suspended until her death, but that it should vest immediately on the death of Mr. Fraser's widow. His words are, “And with regard to the residue of the said trust estate, and also the fee of the said capital sum, after the death of my wife, I hereby appoint and ordain the said trustees to divide the same into four equal parts,” &c.;
“and to settle and secure another just and equal fourth part thereof in favour of Jean Fraser my second daughter, spouse to Mr. Robert Walker, minister of the Gospel in Canongate, and her husband, and longest liver of them two, in liferent, for their liferent use of the interest thereof only during all the days of their lifetime, and to the said trustees themselves in fee, as trustees for the children of the said Jean Fraser of her present or any subsequent marriage, equally among them.”
Not only is there nothing in the legal import of the terms used by Mr. Fraser to prevent these intentions from being given effect to, but the import of these terms is so firmly established by a long train of decisions, that, even had the actual intention of the testator been a matter of doubt, it would have been imperative on a court of law to have construed them in the manner contended for by the appellant.
1 The circumstance that, owing to the existence of their
_________________ Footnote _________________
1 Newlands, July 9, 1794 (Mor. 4,289, Bell, 54); Harvey, May 26, 1815 (Fac. Col.); Bushby, June 23, 1825, (4 S. & D., p. 110. p. 112, New Ed.).
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_________________ Footnote _________________
1 Turnbull v. Turnbull, July 28, 1778 (Mor, 4,248); Stevenson v. Bar, June 24, 1784 (14,862); Sievewright v. Dallas, Jan. 27, 1824 (2 S. & D., 643, p. 543, New Ed.); M'Dowal v. Russell, Feb. 6, 1824 (ib. 682, New Ed. 574); Leitch's Trustees v. Leitch, June 2, 1826, affirmed in the House of Lords, Feb. 17, 1829 (3 W. & S.,366).
_________________ Footnote _________________
2 Stevenson v. Bar, June 24, 1784 (14, 862).
_________________ Footnote _________________
3 Ersk. b. iii., tit. 8. sect. 44.
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_________________ Footnote _________________
1 Sievewright v. Dallas; Scheniman v. Wilson, June 25, 1828, 6 S. & D., 1019; Shaw v. Shaw, 6 S. & D., (supra) p. 1149.
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Respondents.—The claim of the appellant depends entirely upon this position in point of law,—that during the lifetime of Mrs. Walker each of her children held a vested right in a share of the funds liferented by her, capable of being assigned to a stranger, and which, in case of death without issue or assignation, would go to collateral representatives. The respondents maintain the negative of this proposition.
It is admitted on both sides, that this is purely a question of intention. The intervention of a trust in the present case relieves the discussion of all those difficulties which arise from the maxim in the law of Scotland, that a fee cannot be in pendente,—a maxim which, in many cases where its application could not be avoided, has tended to defeat rather than to support the true intentions of the testator. By the deed of Mr. Fraser the whole of his property was conveyed to trustees, with directions to them to settle and secure one fourth of the residue to Mr. and Mrs. Walker in liferent, and to the said trustees themselves in fee.” It is clear, therefore, that none of the cases referred to by the appellant can be admitted as authorities in the
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Where a trust is constituted for uses and purposes, by which the final payment of funds, or the ultimate conveyance of a landed estate, is delayed, (whether with a view to provide for a primary though temporary interest,—such as a liferent, or for other reasons,) the question, whether there exists, in the meantime, any vested interest in individuals, with reference to the ultimate disposal of the funds or the estate, is often attended with difficulty. The intentions of the testator in this respect are sometimes ascertained by special clauses or expressions. But where such do not occur the law has adopted certain general rules of interpretation applicable to the subject.
The first and most obvious consideration calculated to afford a rule of interpretation in such cases, arises from the character and designation of the ultimate beneficiaries. If these are persons known and ascertained at the death of the testator, when the trust commences,—more particularly if they are specially named and designed by the testator, the presumption may be in favour of a vested interest. On the other hand, if the beneficiaries are described merely as a class of persons,—capable of being increased by births, or of being diminished by deaths, subsequent to the commencement of the trust,—the presumption is against a vested interest.
A second consideration arises from the nature of the subject. In the law of Scotland a marked distinction is observed in the interpretation of trusts, according
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A third consideration is, that the very constitution of a trust implies (if there is nothing in the terms of the deed inconsistent with such implication,) that the testator's object was, that the trustees should hold the estate until the period specified by himself, for the parties then capable of taking the intended benefit.
Mr. Fraser, in reference to the residue of his estate, directed his trustees “to settle and secure another just and equal fourth part thereof in favour of Jean Fraser my second daughter, spouse of Mr. Robert Walker, minister of the Gospel in Canongate, and her said husband, and longest liver of them two, in liferent, for their liferent use of the interest thereof only during all the days of their lifetime, and to the said trustees themselves in fee, as trustees for the children of the said Jean Fraser of her present or any subsequent marriage, equally among them, and, failing of children, to and for behoof of the said Jean Fraser's other heirs or assignees.” Until the death, therefore, of Jean Fraser or Walker, the capital sum so settled and secured could not be paid or distributed, and no beneficial interest could be taken or enjoyed except by herself; and that beneficial enjoyment was limited to the interest. Farther, the ultimate beneficiaries were described as the
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Independent of these peculiarities there is a specialty, which is conclusive of the present question, namely, that, failing of Mrs. Walker's children, there is a destination in favour of her other heirs or assignees. By the words “failing of children,” upon which Mr. Fraser makes the ultimate destination to depend, he must have had in view some contingency,—some event which was possible although contingent at the time of his death. Now, it is admitted that the four children of Mrs. Walker were born at the date of the trust deed. If the failure of children meant the non-existence of them at all, the ultimate destination in favour of Mrs. Walker's other heirs or assignees was absurd. Mr. Fraser anticipated the possibility that the children of Mrs. Walker might all die without issue previous to the termination of her liferent. In this event the necessity or utility of a provision for them was superseded. The failure would then take place, and Mrs. Walker was in that case, not only to enjoy the interest during her life, but to dispose of the capital at her death.
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This specialty occurred nearly in the same shape in the case of
Clavering v. Clavering.
1 The only
_________________ Footnote _________________
1 The case referred to was decided by Lord Mackenzie, and his judgment was acquiesced in. It was thus stated by the respondents:—Mrs. Catherine Clavering, or Fletcher, raised an action against the two children of her deceased brother, Rawdon John Clavering, to ascertain the rights and interests of these parties in a bond of provision for 3,000
l. granted by John Duke of Argyle, the grandfather of the pursuer and great-grandfather of the defenders. The circumstances were these: John Duke of Argyle, on the 8th of June 1801, executed a bond of provision payable to trustees, for behoof of his daughter, Lady Augusta Clavering, and her children. The bond was made payable to these trustees, “in trust for behoof of the said Lady Augusta Clavering in liferent for her liferent use only, and of the child or children procreated or to be procreated of her body, equally amongst them if more than one, whom failing, my own nearest lawful heirs in fee, the sum of 3,000
l. sterling money, and that at the first term of Whitsunday or Martinmas that shall happen after my death,” &c. On 12th June 1804 the Duke of Argyle granted an heritable bond of corroboration in similar terms, in favour of the trustees. At the date of the original bond in 1801, as well as at the death of John Duke of Argyle, which took place on the 26th of May 1806, Lady Augusta had four children in life, viz., three sons and a daughter, and her ladyship had no children born subsequent to 1801. Lady Augusta Clavering, the liferentrix, died on the 22
d of June 1831, having been predeceased by her three sons, and survived by her daughter, Mrs. Fletcher, the pursuer. Two of Lady Augusta's sons had died unmarried. The other son, who died shortly before his mother, had left two sons, viz., Ernest Frederick Gascoyne Clavering and Henry Clavering, the defenders in the action. None of the sons of Lady Augusta Clavering left any settlement of heritage. In these circumstances Mrs. Fletcher maintained the following pleas: first, the beneficial right of fee in the provision of 3,000
l. did not vest in the children of Lady Augusta until after the period of her death; secondly, even supposing the fee did vest in all the four children during their mother's life, still as the fee was of a moveable subject, the succession of the predeceasing children went to their executors, and thus the pursuer was equally entitled with the father of the defenders to succeed to the shares of the two predeceasing and unmarried children. The pleas of the defenders were, first, that there was vested, upon the death of the Duke of Argyle and during the liferentrix's life, a joint right of fee in each of his four grandchildren; secondly, this interest being of an heritable kind, the share of the two grandsons who died first fell by succession to the last surviving son, and in his right, the defender, Ernest Clavering, claimed three fourths of the fee. Thirdly, upon the supposition that the fee should not be held to vest until the death of the liferentrix, it was alternatively maintained for the defenders, that uuder the maxim and condition si sine
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_________________ Footnote _________________
liberis decesserit, they must be entitled to take up their father's share of the fee, just as if he had survived the liferentrix. This last plea was not seriously disputed by the pursuer. Lord Mackenzie, on 12th November 1833, decerned in terms of the original conclusions of the libel, and added this “Note.—The Lord Ordinary consideis that the right constituted in the children of Lady Augusta Clavering was heritable, and on this point thinks the argument of the defenders superior. But he is not able to adopt their argument on the other points of the case, viz., respecting the vesting of the fee of the provision made on the children of Lady Augusta, as at the date of the death of the granter, the Duke of Argyle, and the descent of that fee to the heirs at law of each child. It seems to the Lord Ordinary that the great principle is the voluntas testatoris, and he thinks that the intention of the Duke was to provide at his own death for Lady Augusta his daughter, and the children she should leave behind her, not her children alive at the date of the deed or at the date of his (the granter's) death, or her children by any particular marriage, but the children who should be left by her. Accordingly he conveys the jus crediti to the money, and afterwards the heritable security for it, by a deed to take effect at his own death, revocable and dispensing with delivery. He conveys these to trustees, so that there was no necessity for any immediate vesting of any right in the parties favoured. He conveys the whole sum to be held for behoof of Lady Augusta during her life, so that the children could be nowise provided for thereby till her death. He directs his trustees to hold the fee for behoof, not of her existing children nominatim, or her four children, or her children by her existing marriage, but, abstracting from all knowledge of the situation of her family, they are directed to hold in trust for behoof of ‘the said Lady Augusta Clavering in liferent, for her liferent use only, and of the child or children procreated or to be procreated of her body, equally amongst them if more than one.’ Who these children were to be could not possibly be contemplated as known at the death of the testator, and could not well be contemplated as capable of being known till the death of Lady Augusta herself. It was evident too, that they might happen not to be heirs to one another at all, in case she had families by more husbands than one, (brothers and sisters uterine not being heirs to one another,) and at any rate that if they all died, their heirs must be relations solely by the father, not at all relations by the mother, i.e., not heirs or relations of the duke himself. The duke accordingly not only does not call the heirs of the children, but adds to the provision for the children a clause, “whom failing, my own nearest lawful heirs in fee,' by which he excludes these heirs of the children, and provides that, on failure of the children of his daughter, the trustees shall hold for his own heirs.
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_________________ Footnote _________________
The Lord Ordinary finds it impossible to believe that the duke, making and leaving such a provision as this, intended that the fee should vest in the children immediately on his death, and not continue until the death of their mother. There was no legal necessity that it should so vest; the trust obviated any such legal necessity. There was, on the contrary, a legal necessity the other way, i.e., of waiting till it could be known who the child or children of Lady Augusta should be, i.e., till her death. It is plain that a fee of one fourth could not vest in each of four children so as to be alienable, and to pass away to mortis causa disponees or heirs, while it remained perfectly probable that there might be more children, and that the division would not be among four, but among five or twelve. Suppose Lady Augusta had renounced her liferent, these four children could not have demanded payment or assignation of the money or heritable bond to them. Then if the heirs of any of the children are to take, in case of their dying before their mother, how could the equality of the provision be observed, or how could the provision be prevented, in case of their all dying before her, from being payable to their father or remoter relations on the father's side. Then how is the difficulty got over, that there are not only no words in favour of the heirs of the children, as objects of the trust, but there are words directing the trustees, on failure of the children, to hold for the heirs of the duke himself. It is said that the destination to the heirs of the granter is only a conditional institution, because the bond was originally moveable. But it was made heritable before it came to have effect; and besides, this is not an ordinary case of substitution or conditional institution, but of a clause of return to the granter's own heirs, a clause limiting and modifying a gift, which must be favourably construed for the granter. He directs his own trustees to hold a sum for his daughter in liferent, and the children she should have, equally among them in fee, but failing those, to pay the money back to his own heirs. Is that not just substantially saying, that they are not to hold the money for the heirs of the children, but for the class of children, and for his own heirs only? How then can the trustees be bound to hold for other heirs, excluding his own heirs? The case of a competition between the heirs of the duke and the relations on the father's side, the children all dying after the trust had commenced, but before it ended, is fairly put. Could it be found and declared that the trustees were to hold for the heirs of the children on the father's side, and not for the duke's heirs? After the trust ended, no doubt matters came into a different situation. On the whole, the Lord Ordinary is satisfied that the granter intended the fee not to go to the heirs of the children during the trust, and the trust to continue till the death of Lady Augusta. The child of a deceased son is admitted on the maxim, si sine liberis decesserit.”
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It is plain, that had there been a dozen of children of the marriage between Mr. and Mrs. Walker existing at the death of Mr. Fraser no fee and no assignable interest whatever would have been vested in any one of these children; and it will be kept in view that the event which was to ascertain the parties for whose behoof the trustees held the fee, was the termination of the liferent, and especially the death of Mrs. Walker. The parties for whose behoof the fee was to be held were her children, who survived that event. It is impossible to select any period antecedent to her death at which the trustees would have been warranted in saying for whose behoof they held the fee.
Hence survivance of Mrs. Walker was the event on which the vesting of the interests of her children depended. But quoad the children of Mrs. Walker, that was an uncertain event; for, although Mrs. Walker's death was certain at sometime, it did not follow that she might not survive all her children and therefore, in virtue of the maxim, dies incertus pro conditione habetur, the vesting of the interests was conditional, depending on survivance of their mother. This view of the case is strengthened by the fact that the trustees are farther specially directed to hold the fee for behoof of Mrs. Walker's own heirs or assignees in the event of her dying without children. Now as Mrs. Walker survived her daughter, the wife of the appellant, the latter never could acquire any interest through his wife, seeing that the fee did not vest in her.
The distinction between the cases, where the fee has been vested in trustees, and where it has been conveyed to the legatee nominatim, is preserved throughout all
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_________________ Footnote _________________
1 Duncan, Gardner, and Balnain against Myles, Beath, and others, June 27, 1809, Fac. Col.; Brown against Coventry, June 2, 1792, Bell's 8vo. Cases, p. 310; Glendinning and Ghaunt against Walker and others, Nov. 30, 1825, Fac. Col., Shaw and Dunlop, vol. iv. p. 237, New Ed. p. 241.
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2 Feb. 23, 1697, Morr. p. 14,851.
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3 June 24, 1784, Morr. p. 14,862.
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4 July 28, 1788, Mor. p. 4248.
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5 Jan. 28, 1807, Morr. App. Clause No. 6.
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6 Jan. 27, 1824, Shaw and Dunlop, vol. ii. p. 643, New Ed. p. 543.
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The law of Scotland has established a material difference of interpretation in regard to the vesting or not vesting of fees, under trusts beneficiary, according as the
_________________ Footnote _________________
1 Feb. 6, 1824, Shaw and Dunlop, vol. ii. p. 682, New Ed. 574. _________________ Footnote _________________
2 June 2, 1826, Fac. Coll., Shaw and Dunlop, vol. iv. p. 659, New Ed. p. 665. Wilson and Shaw's App. Cases, vol. iii. p. 366.
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On the other hand, the cases of Duncan and others v. Miles, Beath, and Lawson, Glendinning v. Walker, and Dick v. Gillies 2, fall under the class where not only the persons of the beneficiaries, but also their number, were uncertain until the death of the parent or the dissolution of marriage; and in such cases it is presumed that the testator did not intend that there should be a vested right in any individual beneficiary until the uncertainty should be removed.
There is another class of cases in which the testator, instead of leaving the question of the vesting of the right of the beneficiary during the subsistence of a liferent to be determined by mere presumptions, has, by distinct directions, ordered payment to be made on the happening of events previous to the lapse of the liferent. In these it may be truly said, that the question of interpretation as to the vesting never occurs at all. The testator having expressly ordered payment to be made before the lapse of the liferent, that direction must be obeyed, however inconvenient it may be; for presumptions of intention are altogether out of place where the testator has distinctly and expressly declared his will. It is to this class that the cases of Scheniman
_________________ Footnote _________________ 1
Mirrlees v. Mathie,
17th May 1826, Fac. Coll., 4 Shaw and Dunlop, p. 591;
Buchanan v. Downie,
12th Feb. 1830, Fac. Coll. and 8 Shaw and Dunlop, p. 516, New Ed. p. 599. 2
Duncan v. Miles, Beath, and Lawson,
27th June 1809, Fac. Coll.;
Glendinning v. Walker, 30th Nov. 1825; 4 Shaw and Dunlop, p. 241, New Ed.;
Dick v. Gillies,
4th July 1828, vol. 6, p. 1066, New Ed.
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“To my second daughter Jean Fraser one fourth thereof in liferent, for her liferent use of the interest thereof only during all the days of her lifetime, and to trustees in fee.”
Now, for what? “As trustees for the children of the said Jean Fraser of her present or any subsequent marriage, equally to be divided among them.” To say that this conveys no interest whatever to the children of Jean Fraser, unless such children have survived Jean Fraser, does certainly appear at first sight to be a startling proposition; for manifestly, on the first blush of it, this is a gift to Jean Fraser for life, with remainder to her issue in fee; and though the children should not survive her, their remainder, so vested in them during her lifetime, may by assignment from them, made during their lifetime, pass to such devisees or legatees as they shall bequeath such remainder to, and may therefore be assigned by the legal effect of the marriage, which operates as an assignment of the personal property of the wife to the husband of that marriage,
_________________ Footnote _________________
1
Scheniman v. Willison,
25th June 1828, 6 Shaw, p. 1019. _________________ Footnote _________________
2
Shaw v. Shaw,
6 Shaw and Dunlop, p. 1149.
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Dr. Lushington.—By virtue of a special contract of marriage.
Dr. Lushington.—Yes, my Lord.
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(31st August.) On this day
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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutor therein complained of, be, and the same is hereby affirmed. And it is further ordered, That the costs of both parties attending the said appeal be paid out of the fund in medio in the said proceedings mentioned.
Solicitors: Richardson and Connel, — Spottiswoode and Robertson, Solicitors.