Scottish Court of Session Decisions

The late Mr Peter Playfair died unmarried on 20th August 1888 possessed of heritable and moveable estate to the value of about £20,000. He was survived by five nephews, James, John, Patrick, William Menzies, and Patrick George Playfair, sons of his brother Charles Playfair. He was also survived by one niece, Mrs Hunter. There were five children of this marriage alive, the youngest of whom at the testator's death was about eight years of age.

Peter Playfair left a trust-disposition and settlement dated 13th November 1880, by which he appointed his nephews above named, and John Panton, banker and writer in Blairgowrie, for the purposes, inter alia—“(Second), I direct and appoint my said trustees to divide and pay over to the children of Margaret Constable or Hunter, my niece, wife of Patrick Hunter, farmer, Ardgaith, after the youngest child has attained the age of twenty-five years complete, but not till then, the sum of £13,000 sterling equally amongst them, share and share, and it is specially provided and declared that said provisions in favour of the children of my niece, the said Margaret Constable or Hunter, shall not become vested interests in them until the same shall be absolutely conveyed, paid, or

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made over to them by my said trustees;… also declaring, as it is hereby specially provided and declared, that in the event of said children and their lawful issue all dying before said sum of £13,000 falls to be divided amongst them as aforesaid, then the whole sum shall be equally divided by my said trustees among my said nephews, James Playfair, Charles George Playfair, JohnPlayfair, PatrickPlayfair, and William Menzies Playfair; and in the event of any of my nephews dying before this sum comes to be divided among them, and leaving lawful issue, such issue shall be entitled to their deceased's father's share. (Third), That I direct and appoint my said trustees to hold as much of my means and estate as will pay the foresaid sum of £13,000 as aforesaid, and at the first term of Martinmas happening six years after my death, to divide, convey, and make over the whole remainder or residue of my means and estate, both heritable and moveable (in such way as my trustees shall think proper, and of which they shall be the sole judges, but as nearly equally as possible), amongst my nephews, James Playfair, Charles George Playfair, John Playfair, Patrick Playfair, and William Menzies Playfair.” He also appointed his trustees to be his sole executors. He left a codicil dated 26th January 1882, by which he provided—“And farther, I hereby reduce and alter the sum to be paid by my trustees to the children of Margaret Constable or Hunter, my niece, in terms of my foregoing deed of settlement, to the sum of 10,000 instead of £13,000, that is to say, the sum to be paid to the children of my said niece when her youngest child reaches the age of twenty-five years, full and complete, shall be £10,000 and not £13,000, and whom failing said children by death as mentioned in the foregoing deed of settlement, the £10,000 shall be paid in every way the same as I had directed to be done with the £13,000 sterling.”

By another codicil dated 26th March 1884, he revoked the nomination of his nephew Charles George Playfair as one of his trustees, and desired his trustees to divide the residue of his estate among the beneficiaries entitled thereto at the first term of Whitsunday or Martinmas happening six months after his death instead of six years after that event as originally provided.

Questions arose between the parties interested, and this special case was presented by (1) the trustees under the original trust-disposition and settlement; (2) the children of Mrs Hunter with the advice and concurrence of their parents, so far as necessary, and (3) Mrs Hunter herself as one of the next-of-kin of the deceased Peter Playfair.

The question proposed for the consideration of the Court was—“Are the first parties, as trustees foresaid, bound to pay over the interest or proceeds arising from the said sum of £10,000, by half-yearly payments, to or on behalf of the children of Mr and Mrs Hunter, until the period for payment of the said principal sum arrives? Or to accumulate the same for behoof of said children until said period arrives? Or to deal with the same as intestate succession of the said testator? Or are they entitled to deal with the same as forming part of the residue of his estate?”

The second parties argued that the interest of the £10,000 should be paid to them at half-yearly terms — Ogilvie v. Cuming & Boswell, January 27, 1852, 14 D. 363, aff. July 15, 1856, 28 Jurist 646; Campbell v. Reid, June 12, 1840, 2 D. 1084; Williamson on Executors, ii. p. 1434; Ferguson v. Smith, December 4, 1867, 6 Macph. 83. Alternatively it should be accumulated and be added to the fund. The testator did not intend it to become residue, because he had made a gift over to his nephews nominatim— Glasgow's Trustees v. Glasgow, November 30, 1830, 9 S. 87.

The first party argued—As matter of fact no interest did accrue upon this sum which could be paid to them. It was provided that the sum should not vest until the time of actual payment. All that the trustees were directed to do was to make provision that at a certain specified time they were to pay a specified sum. How that was to be done was a question of administration. The cases quoted by the second party did not bear, as they all turned upon the question whether vesting had taken place or not. That question did not arise here, as there was no vesting until the payment of the money was made. The £10,000 was really part of the residue. The bequest was a burden on the residue, but if all the children of Mrs Hunter died before the specified time of payment, that burden flew off, and the sum was divisible among the residuary legatees.

At advising—