Scottish Court of Session Decisions

This was a Special Case between Mrs Louisa Spence or Ferrier, widow, executrix, and universal legatee of William Ferrier, of the first part, and John Ferrier and James Ferrier, of the second part.

Alexander Black, bookseller in Brechin, died on 12th December, 1870, leaving a trust disposition and settlement, the 3rd purpose of which was to the following effect:—“My trustees shall retain from my estate the sum of £500 sterling, and pay over the free income or annual proceeds thereof half-yearly to or for behoof of my sister, Mrs Ann Black or Ferrier, during her lifetime, and after the death of my said sister, or after my own death in the event of the said Ann Black or Ferrier predeceasing me, that my said trustees shall, as soon thereafter as my trustees shall find it convenient, pay the capital of said sum of £500 to my nephew, the said William Ferrier, whom failing, to the lawful issue of his body equally; and in the event of the said William Ferrier dying before the period of payment of said sum of £500 without leaving lawful issue, my trustees shall pay over £200 thereof to the widow of the said William Ferrier, and the balance of said sum of £500 shall be divided equally between John and James Ferrier, brothers of the said William Ferrier.” The moveable estate of the testator at his death was sufficient for the payment of his debts, and to meet all the

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provisions in his trust-deed. Mrs Black or Ferrier, the testator's sister, predeceased him; her son, William Ferrier, survived him, but died on 18th May 1871, leaving a will constituting his wife sole executrix and universal legatee. The other nephews of the testator, John and James Ferrier, claimed the £300 left to them by the clause above quoted, on the ground that William had not survived the “period of payment.” William Ferrier's widow, on the other hand, claimed the whole of the £500.

The questions submitted for the opinion of the Court were:—

“1. Whether the legacy of £500 vested in the said William Ferrier, and so was conveyed by his will to his widow, the first party?” or

“2. Whether the said William Ferrier died before the period of payment of the said legacy of £500, and the direction took effect to pay £200 thereof to his widow, and the remaining £300 to the said John Ferrier and James Ferrier?”

Lee, for Mrs Ferrier, contended that the legacy vested in William Ferrier a morte testatoris, and that there was nothing to show that the testator contemplated a different “period of payment,” except in the event of his being survived by his sister, Mrs Black, in which case the legacy would have vested on her death.

M'Laren, for John and James Ferrier, answered that the “period of payment” meant the time when it was convenient for the trustees to pay the money, and they were actually ready to pay it; and that William Ferrier must be held to have died before that period had arrived. He relied chiefly on the cases of Howat's Trustees, 1869, 8 Macph. 337, 7 Scot. Law Rep. 157; Thorburn v. Thorburn, 1836, 14 S. 485; and Wilkie v. Wilkie, 1837, 15 S. 430, where vesting was held to have been suspended until the period of “receiving payment,” or that of actual division had arrived.

At advising—