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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Trustees of Major General John Alves and Robert Grant [1874] ScotLR 11_559 (3 June 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0559.html Cite as: [1874] ScotLR 11_559, [1874] SLR 11_559 |
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Page: 559↓
A, on the narrative that to the family of B he had been indebted for bringing him forward in his youth, directed his trustees “to hold my said heritable estate in trust to convey and make over the same to C, the second son of B, upon his attaining the years of majority, his heirs and assigns for ever.” A also appointed C to be his residuary legatee, and directed the trustees “upon C attaining the age of twenty-one, to dispone, convey, and make over to him, his heirs and assigns, the whole residue of my means and estate not otherwise specifically disposed of.” Held that the residue of the estate, both heritable and moveable, vested in C a morte testatoris, and that the trustees were bound to pay over the whole annual proceeds to him although he had not attained majority.
The parties of the first part to this Special Case were the trustees and executors of Major General Alves, and the parties to the second part were Robert Grant, second son of the Honourable James Grant, with consent and concurrence of his father. Major General Alves was born in England, and died domiciled in England on 18th September 1862, leaving a trust-disposition and settlement dated 17th July 1860, executed both in the Scotch and English forms. By the trust-settlement he conveyed his whole property to the parties of the first part, who accepted the trust. After directing the trustees to make payment of debts, &c., the trust-deed continued as follows:—“Considering that to the family of the said Honourable James Grant of Grant I have been indebted in bringing me forward in my youth, I direct my trustees to hold my said heritable estate situated in the town and county of Elgin in trust to convey and make over the same to Robert Grant, the second son of the said Honourable James Grant, upon his attaining the years of majority, his heirs and assigns for ever.” The following was the clause appointing a residuary legatee:—“I hereby nominate and appoint the said Robert Grant, the second son of the said Honourable James Grant of Grant, my residuary legatee, and direct my trustees, upon his attaining the age of twenty-one, to dispone, convey, and make over to him, his heirs and assigns, the whole residue of my means and estate not otherwise specifically disposed of by these presents.”
The trustees stated that with due despatch they executed the whole purposes of the said trust other than that relative to the payment and disposal of the residue, both heritable and moveable, of the said estates, the capital of which, along with the accumulations of income not paid as after stated, they still retained, and intended to retain, until Robert Grant, the party of the second part, should attain the age of twenty-one years, which age he will attain on 4th September 1877.
The residue of the moveable estate yields an annual return of about £190 per annum, and the residue of the heritable estate yields an annual return of from £40 to £45.
From the year 1863 to the year 1867 the parties of the first part paid to the said Honourable James Grant, as administrator-in-law for his son Robert Grant, the party of the second part, an allowance of £80 a year, and from the year 1867 to the present time the parties of the first part paid to the Honourable James Grant an allowance of £100 a-year out of the annual proceeds of the residue of the said moveable estate, which has been applied towards the maintenance, clothing and education of the said Robert Grant.
Robert Grant, the party of the second part, has called upon the parties of the first part to pay him the whole annual proceeds both of the residue of the said heritable estate and of the said moveable estate. He maintained that the whole residue of both the heritable and moveable estates had already vested in him, and, separatim, that even if the residue of both or either of these estates should be held not yet to have vested in him, the parties of the first part are nevertheless entitled and bound to pay over the annual proceeds of the residues of both estates to him for his maintenance,—the whole of the said annual proceeds being, as he alleges, necessary for his maintenance,—he having no other means or estate available therefor. The parties of the first part admitted that the free annual income of the residue of both the said heritable and moveable estates, would not exceed a reasonable and proper provision for the said Robert Grant, but they denied that either the capital of the said heritable or the capital of the said moveable estate had vested in the said Robert Grant, or that, even if the said capital had so vested, they would be entitled or bound to pay the whole free annual income thereof to the said Robert Grant.
The questions submitted to the Court were:—(1) Has the residue of the heritable estate of the said deceased Major-General Alves vested in the party of the second part? (2) Has the residue of the moveable estate of the said Major-General Alves vested in the party of the second part? (3) Are the parties of the first part entitled and bound to pay over the whole annual proceeds of the residue of the said heritable estate to the party of the second part, with the consent of the Honourable James Grant as his administrator-in-law? (4) Are the parties of the first part entitled and bound to pay over the whole annual proceeds of the residue of the said moveable estate to the party of the second part, with consent of the Honourable James Grant as his administrator-in-law?
Authorities quoted—Bell's Prin. 1881; Sempils, M. 8108; Torrie, 10 S. 597; Omey, M. 6340; Wood, Hume, 271; Williams on Execution, ii. 1214; Booth, 4 Vesey, 399; West, 4 Giffard, 198; Donaldson's Trustees, 22 D. 1535; Kennedy, 3 D. 1266; Ralston, 4 D. 1496; Menzies Conveyancing, 498.
At advising—
Lord Justice-Clerk—The first two questions in this Special Case which we are now to answer are, Whether the residue of the heritable estate and the residue of the moveable estate of the deceased Major-General Alves vested at the death of the testator in the second party to the case, viz., Robert Grant. The two questions do not entirely depend upon the same considerations, but it is right, for reasons which I shall explain, to consider
Page: 560↓
The conveyance is taken in the first instance to testamentary trustees, who are directed to make over the heritable estate to Robert Grant, “on his attaining the years of majority, his heirs and assignees, for ever.” The bequest of the residuary estate is somewhat differently expressed; for it contains an unconditional nomination of Robert Grant as residuary legatee, and then a direction to the trustees, upon his attaining the age of twenty-one, “to dispone, convey, and make over to him, his heirs and assigns, the whole residue of my means and estate not otherwise specifically disposed of by these presents.” The question is, Whether either or both of these bequests will lapse if Robert Grant should not attain the age of twenty-one, according to the brocard, “ Dies incertus in testamentis conditionem facit.”
This question belongs to a class that has been very largely discussed in the law of Scotland, and one to which it is difficult to lay clown any general rule, so much depends on the indication of the testator's intention, as disclosed in his settlement. Unquestionably where an uncertain term,—that is to say, a term which may or may not arrive,—is adjected to a testamentary gift or bequest, the presumption is that the legatee's survivance of that term is a condition of his right. It may be otherwise, but not necessarily otherwise, where the term is in words adjected not to the gift itself, but to the payment or enjoyment of it. In the Roman law this distinction was allowed great weight, and Voet in his Commentary lays the rule down thus:—“ Conditioni similis est dies incertus: nisi tantum solutionis non obligationis morandæ gratia adjectus sit,” B. 28, t. 8, s. 32. In the earlier cases which were quoted to us from the bar, especially in those of Omey, Sempil, and Home, this distinction was controverted, and perhaps with reason. But still it was clearly laid down in Sempil's case, and still more clearly in the subsequent case of Wood, reported by Hume, p. 271, that these presumptions must yield to the manifest intention of the testator. Indeed it cannot be doubted that before the uncertain term can operate as a condition of the gift it must be attached or adjected to the gift, and that an uncertain term may be attached to the payment of a gift, while the gift itself is intended to take effect and to vest at the testator's death. An example of this is to be found in the most recent and important of the cases quoted to us, that of Ralston, in the 4th vol. of Dunlop. It may perhaps be safely said that one main element in determining how far an uncertain term is adjected as a condition of a legacy, is to consider who is burdened by the legacy, and in whose favour the condition is conceived. An ulterior destination of a specific legacy will go far to solve the question against the legatee; while a bequest of residue to a third party will have a similar, but by no means so conclusive an effect. But if no one but the heir-at-law, or the next of kin, succeeding ab intestato, is burdened by the legacy or benefited by the alleged condition, the presumptions will be strongly the other way.
Applying this view to the present case, I have not found the solution of it attended with difficulty on either of its branches. It is true that in the case of the heritable estate the uncertain term is in words adjected to the gift itself. But I am of opinion, notwithstanding, that it was so adjected for the benefit of the legatee alone, and with the object solely of delaying the enjoyment of the gift, which was to take immediate effect. My opinion proceeds on these considerations,—1st, That the cause of granting implies that it was the testator's fixed intention that the family of Grant should benefit by the bequest. 2dly, That in pursuance of that intention the gift is taken to Robert Grant, his heirs and assigns, for ever, the latter words being such as could receive no operative effect on any other construction. 3dly, There is no other person expressed who on any contingency is to benefit by the gift. And lastly, and to my mind quite conclusively, the only general representative contemplated by the deed as the person who would be burdened by the gift and benefited by the condition, is Robert Grant himself. And as it would be absurd to provide a condition in which no one had an interest excepting the party bound by it, I conclude that no such condition was contemplated. Otherwise the condition was one to take effect only in the event of intestacy, which is not to be presumed.
Even, however, if I had more doubts on the first of these questions, I can find no room for doubt on the second. The residuary clause presents a very good example of an absolute gift with an uncertain term attached to the payment of it. The nomination of Robert Grant as residuary legatee is unconditional,—the direction to the trustees to pay is alone limited by the uncertain term. Thus, in this instance both the words and the intention coincide. If there be a condition in the destination of the heritage, it is one in favour of the residuary legatee, who takes everything heritable and moveable not otherwise specifically disposed of; and therefore whatever Robert Grant fails to take under the first clause vested in him a morte testatoris under the residuary bequest. As a general rule, the presumptions in question will tell more strongly in favour of, and more feebly against, a residuary legatee than in the case of a specific legacy, seeing that a testator is always presumed to test on the whole of his property; and the character of residuary legatee is in itself inconsistent in some measure with a postponed term of vesting, unless very clearly provided. But this clause hardly requires the aid of this distinction.
Page: 561↓
Counsel for First Parties— Pearson and Balfour. Agents— Gibson-Craig, Dalziel & Brodies, W.S.
Counsel for Second Parties— Moncreiff and Asher. Agents— Murray, Beith & Murray, W.S.
