Scottish Court of Session Decisions

This was a Special Case submitted to the Court by the trustees and certain beneficiaries under the trust-settlement of the late Charles James Tennant. The purposes of this trust-settlement, which was executed of date 7th October 1863, were to pay the truster's debts and various legacies of trifling amount, and to provide an annuity of £2000 each to his brother John Tennant and his sister Mrs Couper, and for payment of these annuities he directed his trustees to hold a sum not exceeding one-half of the residue of his estate, and the annuities were restricted accordingly. He further directed that the residue of his estate should be divided among his nephews and nieces in different proportions. He mentioned each by name, and provided that in the event of the decease of any of them before the provision given to him or her vested, the shares should be payable to their lawful issue. But in the case of one of his nephews, who was dead, he made the bequest directly to his children; and in the case of another nephew, James Dunlop, the provision was thus worded—“To the children of James Dunlop, Esquire, residing at Poverty Bay, New Zealand.” It was further declared “that the provisions of minors shall not vestor be payable until they respectively attain majority.”

The clauses of the deed so far as material are quoted in the opinion of the Lord President ( infra).

At the date of the testator's death on 31st October 1870 James Dunlop had eleven children, who were the first parties to this case. A twelfth child, Henry Colin Dunlop, the third party to

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the case, was born on 16th May 1874. Mrs Couper, one of the annuitants, was by this time dead, having died on 27th November 1871. Mrs Tennant, however, the other annuitant, survived the birth of this child, and lived till April 17, 1878. The question between the parties was whether the third party, the child post natus, was entitled to any share of the residue. Some previous procedure in the case is reported, ante, p. 109.

The trustees estimated that the residue would amount to between £245, 000 and £250, 000. Of that amount they retained £122, 500 to meet the annuities, and divided the rest among the residuary legatees. On Mrs Couper's death in 1871 they divided a further sum of £61, 000, and on Mr Tennant's death in 1878 there was as much more available for division.

The parties—who were (1) James Dunlop's children other than Henry Colin Dunlop; (2) the trustees under the trust-settlement; and (3) Henry Colin Dunlop, the post natus—submitted the following questions to the Court:—“1. Are the trustees of the said Charles James Tennant entitled to withhold payment of the whole or any part of their shares of the truster's bequest from such of the children of the said James Dunlop as have attained majority until it becomes certain that there shall be no more children born to the said James Dunlop? 2. Is the said Henry Colin Dunlop entitled under the provisions of the trust-deed of the late Charles James Tennant to an interest in the bequest to the children of the said James Dunlop—(1) To the effect of entitling him to an equal share thereof with all the children born or to be born to the said James Dunlop? or, (2) To the effect of entitling him to take an equal share with his younger brothers and sisters of such portion of the sum bequeathed as may remain after deduction of such portion thereof as had vested in those of his brothers and sisters who attained majority prior to his birth? or (3) To the effect of entitling him to take a share equally with all his brothers and sisters of the family's share of such sums as have been set aside to meet annuities, and as have fallen into residue subsequent to his birth, or may yet fall into residue?”

Argued for the first parties—When was the class of children to be ascertained? In the case of Wood v. Wood, January 18, 1861, 23 D. 338, where children were to take at the date of the death of a liferentrix, that was held to be the date at which the class fell to be ascertained. Now, here the children were to take at once, or at least those of them who were major at the truster's death were entitled to take then, and that they might take equal shares the number of children fell to be ascertained then. To postpone the date of payment was to defeat the express provision of the testator, and to run counter to the presumption of law that vesting took place as soon as possible— Mainwaring v Beevor, 8 Hare 48–49; Gimblett v Purdon, L.R. 12 Equity, 427. Now, these would be direct authorities if there was no sum locked up to satisfy annuities; but that a sum was so set apart did not alter the principle applicable, since the children in existence at the truster's death could test upon their share of the whole fund, including these sums set apart, for they too were expressly included in the fund available for division— Hagger v. Payne, 23 Beavan 474. In the case of Christie v. Wisely, January 29, 1874, 1 R. 436, all children were included whatever the date of their birth, in the terms of a clause very similar to this, but then the liferentrix there was their mother, and therefore their number could be finally ascertained at her death— Blair's Executors v. Heron Maxwell's Trustees, May 31, 1872, 10 Macph. 760; Hamilton Ralston v. Hamilton, 1862, 4 Macq. 397; Theobald on Wills, 142; Buchanan's Trustees v. Buchanan, May 26, 1877, 4 R. 754 (Lord Rutherfurd Clark's opinion); Biggar's Trustees v. Biggar, November 17, 1858, 21 D. 4.

Argued for the third party—It was no doubt true that where there was a simple bequest and no postponement of the term of payment was contemplated, a post natus would not be included. But where payment was to be made on a particular day such a clause as this meant “all children existing on that day, ” and moreover if there were words indicating that nascituri were to take, caution would be required for repetition from children who were entitled to receive payment— Biggar's Trustees quoted above, and Scheniman v. Wilson, June 25, 1828, 6 Shaw 1019. The only reason that was held sufficient to exclude a post natus was an intimation of the truster's intention that his estate should be at once wound up. Where it was impracticable to do so—and it was certainly so here—then the class must be ascertained when the period for winding-up arrives— Mainwaring v. Beevor, and Wood v. Wood, supra; Douglas v. Douglas, March 31, 1864, 2 Macph. 1008 (Lord Curriehill's opinion). It was an entirely artificial rule that where the majority of the children was directed to be the time of payment, the class fell to be ascertained when the eldest child attained that age. That rule was not adopted in Scotland, for there caution for repetition might be required—2 Jarman on Wills, 141; Andrews v Partington, 1791, 3 Brown's Chancery Cases, 401; Hort v. Pratt, 1798, 3 Vesey jun., 729; Sibbley's Trustees, February 17, 1877, L.R. 5 Ch. Div. 49. In Buchanan's case the child with whom the question was to be tried was not in existence. The Court did not therefore find it necessary to decide it, and the opinion of the Lord Ordinary erroneously proceeded on the assumption that repetition was impossible; but that was clearly contemplated in Biggar's case.

At advising—