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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fairgrieve and Others (Stirling's Trustees) v. Stirling and Others [1896] ScotLR 34_80 (14 November 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/34SLR0080.html Cite as: [1896] SLR 34_80, [1896] ScotLR 34_80 |
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Page: 80↓
A testator, after providing an annuity to his widow, directed his trustees to divide his estate as follows:—“My son William and my daughter Annie, and any children that may he born of my present marriage, to have the rest of my means and estates equally amongst them, their respective shares thereof being payable on their respectively attaining majority, but subject always to the said annuity of my said wife, in regard to which i give my trustees full powers to make all necessary arrangements in the event of her surviving all or any of the periods of majority of my said children, horn or to be born; and i direct that on the death of my said wife … my trustees shall divide the capital yielding the said annuity equally amongst my said children.” There followed a declaration that in case of any child dying without leaving lawful issue before his share became “payable,” his share was to accresce to the survivors of the family of children; and that if the child so dying should have left lawful issue, such issue should be entitled to the parent's share.
Page: 81↓
The testator was survived by his wife, and by William and Annie, of whom both attained majority, but William predeceased the annuitant, leaving a widow and two children.
In a question between William's children and parties to whom he had assigned for value his share under his father's settlement, held that the conditional institution of survivors lapsed on William's attaining majority, and that his share was consequently carried by the assignation.
By trust-disposition and settlement and relative codicil John Stirling conveyed his whole estate to trustees, directing them to pay to his wife, if she survived him, an annuity of £160, to be forfeited in the event of her re-marriage.
By the third purpose he directed his trustees to divide his whole means and estate as follows:—“My son John to have the liferent of one-fourth thereof for his liferent use allenarly, and my son William, and my said daughter Annie, and any children that may be born of my present marriage, to have the rest of my means and estates equally amongst them, their respective shares thereof being payable on their respectively attaining majority, but subject always to the said annuity of my said wife, in regard to which I give my trustees full power to make all necessary arrangements in the event of her surviving all or any of the periods of majority of my said children, born or to be born; and I direct that on the death of my said wife, or on her forfeiture of the said annuity as above expressed, my trustees shall divide the capital yielding the said annuity equally amongst my said children, William and Annie, and any children that may be born of my present marriage: And further, I direct that on the death of my said son John the share of my means and estate liferented by him shall in like manner belong to and be equally divided amongst my said whole children born or to be born: Declaring hereby that in case any of my said children shall die without leaving lawful issue before his, her, or their shares respectively become payable, then such share or shares shall accresce to the survivor or survivors and be equally divided amongst them if more than one, in the same manner as his, her, or their original share or shares are hereby directed to become payable: Providing, nevertheless, that in case the child or children so dying shall have left lawful issue, such issue shall be entitled to the share or shares, both original and accrescing, which their deceased parent would have been entitled to if alive.”
The testator died in 1878, survived by his wife, by his son John (who died in 1892), by his son William, and by his daughter Annie. William attained majority in 1882, Annie in 1887. William, who had received payment of no part of his share from the trustees, died intestate in 1895, survived by a wife and two pupil children.
In 1888, in consideration of a loan of £300, William assigned to the testator's widow his whole interest under the settlement, and at subsequent dates he granted further assignations of his said interest in favour of the same person and of another lender.
The trust-estate consisted mainly of heritage yielding a net revenue of £127 a-year.
This special case was presented to determine the respective rights of William's children and of William's assignees in his share of his father's estate.
The children maintained that no part of William's share vested in him, or, that if any vesting took place, it was subject to defeasance in the event, which had happened, of children coming into existence, and that the share had vested in them.
The assignees maintained that the share vested in William a morte testatoris absolutely, or subject to defeasance only on the contingency, which did not arise, of his dying before attaining majority leaving issue. Alternatively they maintained that vesting must be held to have taken place on William's attaining majority.
The following questions of law were stated for the opinion of the Court:—“(1) Did the share of residue destined to the said William Stirling vest in him a morte testatoris? or (2) Did it vest in him on attaining his majority? or (3) Was vesting postponed till the death of the widow Mrs Margaret Matthewson or Stirling? or (4) Is the said share vested in the children of the said William Stirling?”
Argued for the children of William Stirling—There had been no vesting in William. The testator's intention plainly was that vesting should not take place until payment was actually made. That the word “payable” must be taken in this sense was plain from the direction to make all necessary arrangements for the annuity, and upon its termination to divide the capital. Vesting, in short, was postponed till the death of the annuitant, and to that period the clause of survivorship must be referred— Howat's Trustees v. Howat, December 17, 1869, 8 Macph. 337; Macdougall v. Macfarlane's Trustees, May 16, 1890, 17 R. 761.
Argued for the assignees—Vesting took place in the children of the testator either at his death or at latest on their attaining majority. It was a well-settled principle that the mere burdening of a fee with a liferent would not postpone the vesting of the fee— Snell's Trustees v. Morrison, March 20, 1877, 4 R. 709; M'Laren on Wills, 652.
At advising—
The testator provided for his wife (who survived him) by giving her an annuity of £50, increased by a codicil to £100, and directed the trustees of his will to give to his son John a liferent of one-fourth of the residue of his estate. The residue was to be divided amongst the other children of his present marriage equally amongst them, “their respective shares thereof being payable on their respectively attaining
Page: 82↓
Now, the condition upon which this double destination takes effect is the death of a child before his share becomes “payable,” and I do not think that the use of the word “payable” in this collocation is ambiguous, because I think it is a referential word, and that we are entitled to look to the original gift in order to ascertain the sense in which the testator has used the word. This being done, we find that the testator has marked the shares as being payable at majority, and therefore, as I conceive, the true meaning of the conditional institution of survivors or grandchildren, as the case may be, is that it is to come into operation in the event of the death of a child before attaining majority. I think it would not be good construction to hold that the testator uses the word “payable” in different senses in two parts or members of the same residuary destination, and I can find nothing in the context which would necessitate the putting a forced construction on the word.
When William Stirling attained majority the conditional institution fell, so far as it applied to his share, and it is unnecessary to consider whether the testator used the word “payable” in a sense precisely equivalent to “vested.” William at his death had right to a share of residue burdened only with a fixed charge, and with no subsisting ulterior destination affecting it. It follows, in my opinion, that the claim of his assignees is preferable to that of his widow and children, and that the second question ought to be answered in the affirmative.
The Court answered the second question in the affirmative.
Counsel for Stirling's Trustees (First Parties) and for William Stirling's Children (Second Parties)— Dundas. Agents— Wishart & Sanderson, W.S.
Counsel for William Stirling's Assignees (Third Parties)— A. J. Young— R. Scott Brown. Agent— J. Knox Crawford, S.S.C.
