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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Alexander M'Dougall Ralston and Others (Ferguson's Trustees) v. James Hamilton and Others [1862] UKHL 2_Paterson_1135 (18 July 1862)
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SCOTTISH_HoL
Page: 1135↓
(1862) 2 Paterson 1135
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 6
v.
Subject_Fee and Liferent — Trust Settlement — Legacy — Clause — Construction — Vesting —
A testator, by his settlement, directed his trustees to pay a sum of money to B' “in liferent, and to his children equally among them in fee.” Four children of B were alive at the testator's death; and one, who was then in utero, was born a few days after his death, and another was born subsequently.
Held (affirming judgment), That B was entitled to the fee of the bequest.
Subject_Process — Closing Record — Reopening Record. —
The 6 Geo. IV. c. 120, §§ 17, 18, applies only to interlocutors pronounced between adverse litigant parties, and not to proceedings in an action to ascertain the construction of a family settlement.
John Ferguson's trust settlement contained the following bequest: “to John Hamilton, baker in Irvine, in liferent, and his children equally among them in fee, £20,000.” In an action of multiplepoinding and exoneration raised by the trustees, an interlocutor of Lord Handyside had found that John Hamilton was only a liferenter of this legacy. The Second Division recalled that interlocutor, and directed the record to be opened, and the claim amended, so that the true construction might be ascertained.
The Court afterwards held, that the fee of the above legacy was in John Hamilton.
The various parties appealed against the interlocutors.
The children of John Hamilton appealed by cross appeal, and in their printed case stated the following reasons for reversal:
1. Because it was ultra vires of the Court, being contrary to the enactments of the Statute 6 Geo. IV. c. 120, and the Act of Sederunt, nth July 1828, to authorize the Lord Ordinary to open up the record, and allow amended claims; and the whole proceedings in the Court of Session, in so far as they admitted and sustained, a claim on behalf of John Hamilton to the fee of the legacy in question, were incompetent. 2. Because the interlocutor of Lord Handyside, of 17th July 1857, was acquiesced in by John Hamilton, and became a final judgment as between him and the respondents (cross appellants). 3. Because the meaning and intention of the testator, according to the sound legal construction of his trust deed and codicil, was, that the fee of the legacy of £20,000 should belong to the persons answering to the description of “children” of John Hamilton at the testator's death. 4. Because the assignation founded on by the claimants William M'Jannet and others, as trust assignees of John Hamilton, in so far as it bore to convey the fee of the legacy, was ultra vires of the granter, and afforded the said William M'Jannet and others no title to resist the claim of the present respondents (cross appellants).
The trustees of Ferguson, the appellants, also contended for the construction, that the fee of the legacy was in John Hamilton's children.
Bacon Q.C.,
Mure, and
Pearson, for the appellants.—The main question is, whether this legacy to John Hamilton and his children amounted to giving the fee to John the father. This is entirely a question of intention derived from the words of the will, as the rule is expressed by Lord Moncreiff in
Hutton's Trustees v. Hutton,
9 D. 639. In order to see what was the meaning intended by these words, it is legitimate to inquire into the circumstances of the donee's family at the date of the bequest, so as to put the Court in the situation in which the testator was at the time he used the words in question. Now,
primâ facie, it was much more likely that the testator meant to benefit the children and give them the fee of the legacies. Such also is the natural and plain meaning of the bequest. But it is said, there is a settled rule in the law of Scotland, that in such legacies the fee vests in the father, as was laid down in
Frog's Creditors,
M. 4262. But there the subject was heritable, and the feudal technicality, as to the fee never being
in pendente, prevailed. Besides, the testator stood
in loco parentis, and there were no trustees. Here all these characteristics are present. The rule in
Frog's
case was soon followed as a settled rule—
Lillie v. Riddle,
M. 4267;
Douglas v. Ainslie,
M. 4269. That rule, however, has often been questioned, and Erskine (ii. 1, 4) says it has no foundation in nature or law.
_________________ Footnote _________________
1 See previous reports
22 D. 1442:
23 D. 1290:
32 Sc. Jur. 654:
33 Sc. Jur. 135, 646
S. C. 4 Macq. Ap. 397:
34 Sc. Jur. 659.
Page: 1136↓
Lord Advocate (Moncreifif), Solicitor General (Palmer), Rolt Q.C., Sir H. Cairns Q.C., Boyle, Millar, Lee, Lamond, and Lefevre, for the various respondents.—In course of the argument, two preliminary objections were raised. The Court of Session, it was maintained, had no power in this case to open up the record after it had been duly closed. The Judicature Act, 6 Geo. IV. c. 120, §§ 10 and 11, and the Act of Sederunt, nth July 1828, § 48, lay down directions as to the closing of the record, and shew, that it is allowed to be opened up only in case of res noviter veniens ad notitiam, or matter emerging after the action was commenced. Here, it was contended by some of the respondents, that neither of these things occurred. The amended claim of John Hamilton was not a new plea or ground in law, but an entirely new claim, inconsistent with his former claim. There was no power in the Court to open up the record in these circumstances. Melville v. Douglas, 7 S. 186; Lothian v. Tod, 7 S. 525; Gordon v. Trotter, 10 S. 47; Crawford v. Bennet, 10 S. 537; Stewart v. Maconochie, 14 S. 412; Maben v. Perkins, 15 S. 1087; Inglis v. Douglas, 22 D. 505. Moreover, even if the record was properly opened up, the interlocutor of the Lord Ordinary (Handyside) was final and conclusive aS regarded John Hamilton—6 Geo. IV. c. 120, § 17. Indeed John Hamilton had acquiesced in the Lord Ordinary's interlocutor.
As to the merits, besides the cases previously stated, the following were referred to:— Porterfield, M. 4277; 2 Paton, Ap. 537; Mure v. Mure, M. 4288; Dewar v. Mackinnon, 1 W.S. 161; Macintosh v. Macintosh, 28th Jan. 1812, F.C.; 3 Ross L. C. 643; Macintosh v. Gordon, 4 Bell's Ap. 118; Kennedy w. Allen, 3 S. 554; Menzies' Conv. 650.
Cur. adv. vult.
The legacy became payable on 9th September 1856, and there are abundant means wherewith to pay it, but no one of the parties interested has as yet derived any benefit from the bequest in consequence of this litigation.
The difficulty in the present appeals is almost entirely of a technical nature. The question may be thus generally stated: An action of multiplepoinding and exoneration having been raised by the trustees acting under the trust disposition, which I will henceforth call the will of the truster, against the beneficiaries under that will, certain proceedings were taken on behalf of John Hamilton, in which, as it appeared to the Lords of the Second Division, before whom the matter was brought by the reclaiming note of the trustees, an erroneous interpretation had been put on the bequest to John Hamilton and his children, and, accordingly, the Court by its interlocutor of the 18th March 1859, directed the record to be opened, and allowed the claims to be amended, in order that the true construction of the bequest might be again considered.
In doing so the Court recalled an interlocutor of the Lord Ordinary of the 17th July 1857, in which John Hamilton, the father, was found to be a liferenter only of the legacy in question, and from which decision John Hamilton had not reclaimed. It is insisted, that the Court had no power to do this, and, that the course taken is in contravention of the Act 6 Geo. IV. c. 120.
Page: 1137↓
It must be remembered, that the object of the action is the exoneration of the trustees by ascertaining the true construction and effect of the bequest contained in the will. The trustees, therefore, have an interest in the true interpretation of the will, and especially of a bequest under which future children of John Hamilton might be entitled to claim.
Although, therefore, neither John Hamilton nor the curator of his infant children had reclaimed against the interlocutor of 1857, or disputed the construction thereby put on the bequest, the trustees had a right to do so, and to bring the whole interlocutor, so far as it affected the construction of the bequest, before the Inner House by a reclaiming note. And in my judgment, regard being had to the generality of the concluding portion of the prayer, this was in effect done by the reclaiming note of the trustees. That reclaiming note empowered the Inner House to consider the whole question of the construction of the bequest, and to take such course as might appear to them to be necessary for the exoneration of the trustees by ascertaining and declaring the true rights of the beneficiaries.
Whilst this reclaiming note was in dependence the matter was still further set at large by the birth of Peter, the youngest child of John Hamilton, and by his being sisted as a party to the process then pending, by virtue of the reclaiming note before the Lords of Session.
The claim of Peter is made in the following words:— “On the supposition, that the legacy of £20,000 should not be found to be vested in John Hamilton as fiar, the pupil claimant, Peter Hamilton, should be preferred to one sixth share thereof, under burden of his father's liferent.”
This claim immediately suggests the right of the father as fiar to the whole of the legacy.
Now, Peter was in no respect bound by the interlocutor of the Lord Ordinary in 1857, nor, having regard to his claim, could he bind his father by that interlocutor.
Under these circumstances it would appear to me, that the course taken by the Court of Session in their interlocutor of March 1859, of opening the record, was proper and competent. But then it is insisted that under the 17th and 18th sections of the 6 Geo. IV. c. 120, the interlocutor of the Lord Ordinary finding the father entitled to a liferent only was final; that it was not competent to the Court to relieve the father from the effect of that interlocutor, and that the interlocutor of March 1859 is therefore erroneous.
In my opinion this is not the effect of the Statute in the present case. I have already observed, that the whole of the interlocutor of the Lord Ordinary may be considered as brought up on appeal by the reclaiming note of the trustees, and, that the sisting and claim of Peter involved the necessity of reconsidering the construction of the bequest.
Further, the 17th and 18th sections of the Statute appear to me to apply only to interlocutors pronounced between adverse litigant parties. Now, as between the father and the children existing at the death, no controversy or issue had been raised. Under the process of multiplepoinding the father and the four elder children had brought in one joint claim, in which the father and curator of the children submitted, that the father was entitled to a liferent, and the children to the fee of the legacy. Afterwards Marion was added to the class of chil lren entitled, on the ground, that though in utero she was a child in esse at the death of the testator.
The interlocutor of the Lord Ordinary, therefore, as regards the father, was the necessary result of the submission contained in this form of claim. It seems unreasonable, that the father should be bound by his submission when the four children for whom it was made can no longer have the benefit of it. But further, I am of opinion, that where the whole object of an action in a court of justice is to ascertain the true construction of a trust settlement or will, and to declare the rights of the several parties as consequent on that construction, no party can be considered as finally bound by a claim or statement founded on a construction of the instrument which is erroneous in law.
On considering the claim of Peter, the Judges of the Inner House perceived, that the true point of law had not been raised as between the father and the children, and they opened the record and gave the power of making new statements for the purpose of raising it, and in so doing, they acted in conformity with the nth section of the Statute.
For these reasons I submit to your Lordships, that the interlocutor of March 1859 was right, and ought to be affirmed.
We now come to the merits, namely, the true construction of the bequest. It must be remembered, that the rules which govern the transmission of property, are the creatures of positive law, and, that when once established and recognized, their justice or injustice in the abstract is of less importance to the community than the fact, that the rules themselves shall be constant and invariable.
Now, if the subject of this gift had been heritable property, I should have considered it a clear proposition in the law of Scotland, that the father was absolute fiar.
I consider it to be also established by decisions, that the same rule of construction must be applied to the words when the subject of the gift is movable or personal property. I am fully sensible of the absurdity of the legal reasoning on which this last proposition is founded. It begins by confining the father to a liferent, in order to arrive at an enlarged construction of the word “children;” and having thus affixed to the word a construction founded on the existence
Page: 1138↓
I therefore humbly advise your Lordships, that the interlocutors appealed from ought to be affirmed, and the appeals dismissed.
It was, indeed, contended, that here the gift to the children of John did not include children nascituri, but only those in existence or in utero at the testator's death. But there is evidently no foundation for such an -argument. As to James Hamilton, the gift to whom and whose children immediately precedes, and is in the very same words as that to John and his children, children to be born must have been intended, for he was at the date of the will a bachelor. And it is impossible to hold, that the word “children” was used in one sense when applied to James, and in another when applied to John. Of the propriety of the decision of the Court, if they had authority to adjudicate on the subject, I have no doubt.
But it was argued, that the Court was acting ultra vires; that by the Judicature Act, 6 Geo. IV. c. 120, an interlocutor of the Lord Ordinary is binding on those who have not reclaimed against it. And here, it was said, Lord Handyside's interlocutor of the 17th July 1857 decided, that John was a liferenter only, and, that by that he must be taken to be concluded, as he did not reclaim against it. But is this so?
The contention of John and his four children born in the testator's lifetime was, that they, and they alone, were entitled to the legacy of £20,000. The contention of Marion, the child born shortly after the testator's decease, was, that she was entitled to the same rights as the four other children, her brothers and sisters. The contention of the trustees was, that John was a mere liferenter, and, that all children of John, whensoever born, were entitled to the fee, and so that they were bound to retain the fund. Lord Handyside decided, that Marion was to be treated as a child born in the testator's lifetime, and that John and the children then born (including Marion as one) were entitled to the exclusion of after born children, and so repelled the claim of the trustees to retain the fund.
The trustees reclaimed; and on the argument of the case before the Inner House, the Court saw, that from the form of the record, though the question between the children born and those to be thereafter born, might be decided, yet, that another question, apparently overlooked by John, namely, the question between him and his children, whether he was not the fiar, could not be decided.
The Court, therefore, remitted the case to the Lord Ordinary, with power to open up the record, and allow the claims to be amended, or new claims to be given in.
This was accordingly done, and John and his children made separate claims, John claiming that he was not a mere liferenter, the fee being in him.
The result of the proceedings on the record thus amended has been, to decide, that John is the fiar, and so entitled to the whole 20,000 absolutely.
This judgment is, in the opinion of your Lordships, correct. Any other decision would have had the effect of handing over the money to a person or persons not entitled to it, and consequently of depriving John of his just right.
The only question is, whether the Inner House had the power so to remit the cause, and enable John to insist on his true right. I think it had. If such a power is excluded by the Judicature Act, this must have been a result contrary to the real intention of the Legislature. It cannot have been intended to compel the Court to order trustees who have a fund in hand, and who are seeking the directions of the Court as to the persons to whom it ought to be paid, to hand it over to persons not entitled, though it appears on the record who the person is who has really the right.
But I do not think, that the Judicature Act does prohibit the Court from taking the course which it followed.
Whenever the Legislature imposes restrictions or regulations on the action of the superior Courts, it is not unreasonable to say, that its language must be looked to with a strong inclination to construe it in the mode best calculated to promote obvious justice. And I think, that,
Page: 1139↓
The obvious object of this proviso is, to enable the Court, when justice requires it, to allow the record to be amended, so that all questions of law arising on the facts before it may be fairly and fully raised.
I am aware, that what has been done in this case is not merely to add new pleas, but also to withdraw others, and, in fact, to add pleas not only in addition to, but also at variance with, some already on the record. This is true; but considering the nature and object of the proviso, I think the greatest latitude of construction ought to be allowed. Here the Court saw, that two parties having conflicting interests had (evidently mistaking their rights) joined in making a common claim with the view of negativing the claim of a third party. To a certain extent the claim was rightly asserted, i. e. the parties were right in their contention against the third party. But the Court said, that, as among themselves, there was a question which the record in its actual form did not allow to be raised, and as to which the parties were in error. Surely, on a fair construction of the nth section, the Court was at liberty to allow any amendment to be made which would bring for decision the real rights of all parties concerned.
The children to whom Lord Handyside's interlocutor gives the fee have clearly no right except what arises from the estoppel affecting their father, (I use an English expression, but the meaning is obvious,) from the circumstance of his having joined with them in an erroneous statement of the true construction of the will.
But on that ground it is clear, that Marion had no title whatever. No child could claim against its father on the ground of his being bound by the way in which he had framed his claim, except those expressly named by him.
It follows, that the interlocutor which lets in Marion cannot be right.
I must add, that, though I think the nth section authorized the course taken, I am by no means satisfied, that there would not be a power inherent in the Court to take the course it did, even independently of that section.
The enactments of that Statute are framed with a view to regulate the proceedings of parties engaged in hostile litigation, and I should be slow to admit, that by any of its provisions it could have been intended to compel the Court to hand over a fund in medio to a party appearing on the record not to be entitled.
This is an action of multiplepoinding, and by an Act of Sederunt, made in July 1828, proceedings in such an action are to be assimilated, as far as may be, to those in ordinary actions. But there is no specific Act of Sederunt applying to such a case as that now before us, and I do not think we are bound by the general language of the Act of Sederunt of 1828 to follow all the enactments of the Judicature Act. The analogy, if it is necessary to find an analogy between this proceeding in multiplepoinding and the proceedings in an ordinary action, goes no further, in my view of the case, than to decide, that Lord Handyside's interlocutor established conclusively against parties not reclaiming, that as between, on the one hand, John and his children born at the death of the testator, treating the child in utero as then alive, and, on the other hand, children of John to be afterwards born, the latter had no interest in the legacy.
This appears to me a fair and reasonable view of the case, and one which warranted the Court in the course they took. I am therefore of opinion with the Lord Chancellor, that the interlocutors appealed against ought to be affirmed.
It was strongly contended on the part of John Hamilton's children, that as neither he nor they had appealed against this interlocutor, it became final as between them, although it might be open to Peter Hamilton, the son who was born pending the proceedings in the Inner House, and was sisted as a party to contend against that part of it which confined the fee of the legacy to the children in existence at the death of the testator; and that the interlocutor of the Second Division, recalling the interlocutor of Lord Handyside, and remitting to Lord Kinloch, Ordinary, with power to open up the record and allow the claims to be amended, or new claims to be given in, was ultra vires, and ought to be reversed. The objection to this exercise of jurisdiction was grounded principally on the provisions of the Act 6 Geo. IV. c. 120, commonly called the Scotch Judicature Act, the 17th section of which enacts, “that every interlocutor of the Lord Ordinary shall be final in the Outer House, subject, however, to the review of the Inner House, in manner
Page: 1140↓
The application for a review of the Lord Ordinary's interlocutor was by the reclaiming note of the trustees, which was directed to that part of the interlocutor giving the fee of the legacy amongst the children of John Hamilton living at the death of the testator, and merely prayed, that it might be found they were bound to retain the fee of the legacy of £20,000, inter alia, until it was seen whether any other children might be procreated of John Hamilton, and by the claim of Peter Hamilton, the child born pending the proceedings, claiming to be preferred to a sixth share, under burden of his father's liferent. It was insisted, that, there being no attempt to disturb the interlocutor so far as it gave John Hamilton the legacy in liferent and his children in fee, the Inner House was bound to confine itself to the only part of the interlocutor upon which the application was made for a review, and to decide the cause upon that ground.
On the part of John Hamilton, it was argued, that the provisions of the 6 Geo. IV. c. 120, relied upon by the other side, did not apply to cases of multiplepoinding, but were confined to ordinary actions of the description mentioned in the 1st section, to which all the subsequent sections impliedly referred. To which it was answered, that an Act of Sederunt of 11th July 1828, § 48, after prescribing to claimants in multiplepoinding, the forms of proceeding as to condescendences, objections to claims, and note of pleas, enacts, that “thereafter in every instance the procedure shall correspond, as nearly as may be, to what is provided in the case of an ordinary action.”
Now, if this had been the case of an ordinary action, I should have felt great difficulty in saying, that the Court would have had power to open the record, not upon any application of the parties themselves, but proprio marte and with the view of allowing a claim to be made totally different from that which was originally preferred.
Various authorities were cited to establish the right of the Court to deal with the record in the manner they have done, but none of them appear to me to meet this case. The case of Cranford and Others v. Bennett, 10 S. 537, which was much relied upon, differed from the present in one essential particular, that the Court there acted on the application of one of the parties who had to pay the expenses as the price of the indulgence granted. I have not been able to find any authority for the Court itself directing the record to be opened, except where there has been some irregularity in preparing or closing it, or where it has not been made up in a shape so correct and full as to enable the Court to give judgment upon it, as in the cases cited in argument of Melville v. Douglas's Trustees;Lothian v. Tod; to which may be added the recent case of Inglis v. Douglas, 22 D. 505.
If this, therefore, had been an ordinary action, I should have been disposed to think, that there had been an excess of authority by the Inner House, in giving power by their interlocutor to open the record, and to allow new claims to be given in. But after some hesitation I have come to the conclusion, that the course was competent from the peculiar nature of the proceedings in multiplepoinding, and from the mode in which the case was presented for review. I have not lost sight of the Act of Sederunt, which assimilates the procedure in multiplepoinding to that in an ordinary action. But I do not think, that the discretion exercised by the Court of remitting the cause and opening the record, can be said to come within the proper meaning of the term procedure. An action of multiplepoinding is not like an ordinary action brought by one person against another to recover a debt or damages, or to establish some right in which the pursuer must necessarily be bound to prove the claim or title which he has chosen to allege. In a proceeding of multiplepoinding, the fund upon which the different claims are made is brought into, or at least is within, the authority of the Court, and while it remains in medio all parties claiming any interest in it may appear, although not cited, and assert their claims. The duty of the Court is to adjust these claims, and to distribute the fund, in the words of the summons, to such of the several defenders and others, as may be found to have best right thereto. If, upon the proceedings being brought before them, it appears, that some of the claimants have proceeded upon a mistaken view of their rights, and therefore, that the record as it stands precludes a determination of the true title, it seems scarcely consistent with the duty which the Court are called upon to discharge, or with reason and justice, that they should be forced to decree payment to parties who, according to their own more correct judgment, have no just claim upon the fund. It was admitted by the Lord Advocate, that unless the Court had power to recall the record, it would not be open to them to determine, that the parents and children had other rights than those which the interlocutor had decided. Both the reclaiming note of the trustees, and the claim of Peter, the after born son of John Hamilton, challenged the interlocutor only so far as it confined the fee in the legacy to the children born at the death of the testator. These claims proceeded entirely upon the supposition, that the legacy was not vested in John Hamilton as fiar, and in this respect the interlocutor was not brought in view before the Inner House.
Attention was called, in the course of the argument for John Hamilton, to the closing prayer
Page: 1141↓
The interlocutor of Lord Handyside being thus removed out of the way, the case is open as to the construction of the bequest upon the competition between the parents and the children. I agree, that this is a question of intention, to be collected from the words of the trust disposition; but if certain words are employed, which have obtained a known and settled meaning by law, we are not at liberty to look behind them in order to discover some other intention in the mind of the testator different from their legal import. The trustees contend, that in this case the difference of language used by the testator as to the different bequests, plainly shews a difference of intention in each instance; that where he has intended the fee of the legacy to go to the legatee, he has said so in express terms; and that, therefore, where he has given a legacy to a parent in liferent, and to his children amongst them in fee, he must be supposed to have intended what his words naturally express.
But in answer to this argument it must be observed, that the words, in which the legacies in question are given, have received a settled construction, which cannot bend to a presumed different intention. No authority has been cited except Turnbull's case, in which a gift simply to the parent in liferent, and to the children in fee, has been held to carry the fee to the children, and not to give it to the parent. The appellants admit, that the rule of construction against which they are contending has been long settled as to heritable subjects, but they say, that the principle, that the fee cannot be in pendente, upon which it was founded, is not applicable to movables, and, that there is no authoritative decision which extends it to them. But it has been generally assumed, that there is no distinction in the construction of gifts of these different
Page: 1142↓
The appellants, however, contend, that the rule is not so rigid as not to bend to the intention, and, that various exceptions to it have been from time to time introduced. Thus it has been held, that any expressions which clearly and unequivocally shew, that it was the intention of the testator, that the parent should be confined to an interest for life in the legacy, have been allowed to prevail. The word “allenarlv,” for instance, or any word of equivalent meaning, in a gift of legacy in liferent to the parent, and to the children in fee, has been held sufficient to prevent the fee vesting in the parent. Lord Campbell, in Mackintosh v. Gordon, observes, “that he cannot say that the word ‘allenarly’ more clearly expresses the intention of the settler, who, when he gives a life interest to the parent, and fee to the children, can hardly intend, that the parent should take the fee; but.” he adds, “I consider, that we are bound by the long and uniform current of authorities.” It appears to me, that these words suggest a remark which is hostile to the appellants’ argument. The deed in question was evidently drawn by a person of legal knowledge. He must have known, that if it were really the intention of the truster, that in the gift of the legacies in question the parents’ interest should be limited to their lives, one single word would have effected the object, and by adopting a form of gift without this restrictive expression, he must be taken to have intended to leave it to its legal effect.
But the appellants rely upon the exception which has been introduced into the rule in cases where the fee of the subject is given in trust to apply to the objects of the gift, it being held, that the trust fee satisfies the maxim, that the fee cannot be in pendente, and that the liferent may therefore be construed according to the true meaning of the words. Cases of this description were cited, amongst which it is necessary only to mention Seton's case, M. 4219, and Mein v. Taylor, 4 W.S. 22. But in order that this construction should obtain, the trust must be of such a nature as to render it necessary, that the trustees in the execution of their duty, should hold the trust estate, and not merely have to do some act with respect to it, by which they at once divest themselves of it, either by paying it over to the parties entitled, or by conveying it in such manner and form as is expressly designated in the trust disposition. This was the nature of the trust in the case of Hutton's Trustees, 9 D. 639, and in Robertson v. Duke of Atholl, 20 Nov. 1806, F.C.
The appellants, however, contend that a trust was created in this case which would exclude the operation of the rule; and, if I understand their argument, it was carried to this extent, that whenever executors are named they are trustees. This is certainly true in a sense, but the question here is, whether their trust is of such a character as to render it necessary, that the fee should be in them, so as to obviate the influence of the rule of not allowing it to be in pendente, upon the construction of a gift to the parent in liferent, and to the children in fee. Now, all that the executors are required to do is, to pay to the parties who are entitled, at the Whitsunday or Martinmas, that shall occur after the date of twelve months of the testator's decease, so far as they shall have realized funds sufficient for the purpose; and to pay into the bank, where the legatees shall not be ready to receive and discharge the same. This latter direction appears to be applicable only to such of the legatees as were in existence and immediately entitled, but who, from circumstances, might be unable to take their legacies at the appointed time, and give a receipt for them. To argue that there was a trust for the children of John Hamilton and of James Hamilton which required the trustees to hold the fee of the legacies, is to assume the very point to be proved, viz., that the parents had nothing more than a liferent, and that the fee belonged to the children.
There is nothing, therefore, to prevent the ordinary operation of the words in which the gifts in question are made to the legatees, and no decision which favours the view of the appellants but that of Turnbull, which was so much commented upon in the Court of Session, and during the argument at your Lordships’ bar. The majority of the learned Judges of the Court of Session did not consider that case as any authority—an opinion which the meagre report we have of it may perhaps justify. But Lord Benholme said, “Had this been an heritable subject and not a mere money provision, I should have had no doubt upon the question. My doubt is applicable only to money provisions or legacies. And with reference to this legacy, I confess I have felt extreme difficulty in this part of the case arising exclusively from this case of Turnbull.” Probably, the explanation of this decision is that which is given by Lord Cowan, who, in observing upon Turnbull's case, says, “Besides the peculiarity of the circumstances attending the competition, there is this further circumstance, that the subject of the destination was a money provision, which is the view taken of it in the subsequent case of Porterfield, and in the case of Williamson v. Cochran, in 1827. It was not then so firmly fixed, that the rule of construction applied to movables as well as to Land, as it came afterwards to be.” If Turnbull's case was founded upon this distinction, the ground of it has been long ago removed; and if it proceeded upon the construction of the words of the gift, it is opposed to numerous decisions both before and after it was pronounced. I may be disposed to acquiesce in the remarks made by the Lord Justice Clerk in the case of Ramsay v. Beveridge, 16 D. 769, “that the decisions
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The Lord Advocate asked what was to be done as to the costs.
Lord Chancellor.—The House has considered the question of costs, and is of opinion, that the appeals should be simply dismissed and nothing further said about costs.
Interlocutors affirmed.
Solicitors: Messrs. Deans and Stein, Messrs. Loch and M'Laurin. and Messrs. Maitland and Graham, Solicitors, London.—Messrs. Patrick, M‘Ewen, and Carment, W.S., A. and A. Campbell, W.S., and Robert Landale, S.S.C., Agents, Edinburgh.