Scottish Court of Session Decisions

The late Major-General James Corse Scott died on 6th March 1890, domiciled in Scotland, leaving a trust-disposition and settlement, dated 20th March 1889, and relative codicils. By the said trust-disposition and settlement the truster directed, inter alia, “(Seventh) That my trustees shall retain and invest in their own names the sum of £10,000 sterling for the younger children of my nephew the said John Scott of Sinton—that is, the whole lawful children of the said John Scott other than the child or heir who shall succeed or be entitled to succeed to the said estate of Sinton—and apply the income thereof for their behoof and maintenance, and convey and make over the capital of said sum of £10,000 to said younger children equally, share and share alike, on said children, if males, attaining the age of twenty-one years complete, and, if females, on their attaining said age or being married, whichever event shall first happen.” It was further provided that “the fee of none of the capital sums or shares of residue hereinbefore destined shall be payable by my trustees, nor shall the same, or any part thereof, or any interest therein, vest, or be held to have vested in the recipients thereof, or in any of the lawful issue of such recipients, unless and until such recipients or their lawful issue, if males, shall have attained the age of twenty-one years complete or, if females, shall have attained such age or been married, whichever event shall first happen, but nevertheless my trustees shall have power to advance and pay to or for behoof of all or any of such recipients or their lawful issue, the whole or any part of the free annual income accruing upon the presumptive share or shares of any such capital sums or shares of residue to which they or any of them or their issue are respectively entitled to under these presents, or any part of such capital sums or shares of residue, not exceeding one-third thereof, for the advancement in life of them or any of them.”

By codicil dated 21st February 1890 the truster further directed the trustees to invest in their own names the sum of £8000 sterling in trust for the liferent alimentary use allenarly of Mrs Eugenia Margaret Cameron Money or Scott during her widowhood, and on her death or forfeiture of life—rent by re-marriage (which happened on 15th October 1890) he directed and appointed his trustees “to hold, invest, pay, convey and make over the said sum of £8000 to and for the lawful issue of the body of my nephew the said John Scott of Sinton, equally among them, share and share alike, payable said shares on said children, in the case of males, attaining the age of twenty—one years complete, and, in the case of females, on their attaining said age or being married, whichever event shall first happen, and to apply the income of said shares for behoof of such issue during their minorities, or, in the case of females, until marriage.” The liferentrix, the said Mrs Eugenia Margaret Cameron Money or Scott, having married on 15th October 1890, forfeited her interest under the said provision.

Mr John Corse Scott of Sinton had the following children John Michael Corse Scott, born 25th February 1882; Marianne Katherine, born 22nd April 1883; Violet, born 15th April 1884; Esther, born 25th October 1885; James Douglas, born 20th November 1886; Leila Jane, born 10th March 1889; and Alexander, born 25th November 1894. Of these children, Alexander, the youngest, was thus born after the death of the truster, the whole of the other children having been born before that event. None of the children were married, and the five eldest had now attained majority.

Question having arisen as to the rights of parties a Special Case was presented to the Court.

The parties to the Special Case were (1) the trustees; (2) the younger children of the said Mr Scott of Sinton, i.e., his whole children except the eldest son the said John Michael Corse Scott (who was entitled to succeed to the said estate of Sinton under the entail thereof), and except his youngest child, the said Alexander Corse Scott, who was born after the truster's death; (3) the said John Michael Corse Scott; (4) the said Alexander Corse Scott, with consent and concurrence of his father.

The following statement of the parties' contentions is taken from the Special case:—

The first parties maintain that under the seventh purpose of the settlement the parties intended to be benefited are the whole children of Mr Scott of Sinton born,

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or to be born, other than the child or heir who may succeed, or shall be entitled to succeed, to the estate of Sinton, and that therefore the said provision cannot be paid over until it is seen whether Mr Scott of Sinton shall, either by his present or any subsequent marriage, have other children. The first parties similarly maintain, in regard to the provision in the codicil of 21st February 1890, that the provision in favour of ‘the lawful issue of the body of my nephew the said John Scott of Sinton,’ is a provision in favour not only of the existing issue but includes any issue of Mr Scott who may hereafter come into existence. The trustees therefore maintain that it is their duty to hold the funds disposed of by these two provisions until it is ascertained that there is no possibility of the class being further increased.

The second parties maintain that by the seventh purpose of the settlement the truster intended to benefit only such of the children of Mr Scott of Sinton (other than the heir entitled to succeed to the estate) as were in existence at the date of his death; and that the youngest child of Mr Scott, Alexander, is therefore excluded from the benefit of the said provision. Alternatively, they maintain that the persons intended to be benefited under the said provision are the whole children of Mr Scott (other than his eldest son) alive at 22nd April 1904, being the date when Marianne Katherine Corse Scott (the eldest of their number) attained twenty-one and so became entitled to payment of her share in the said provision, and that each of the other members of the class in like manner is entitled to payment of his or her share on attaining twenty-one, or, in the case of females, marrying before that age.

The second and third parties maintain, similarly, that the provision in the codicil of 21st February 1890 was intended by the truster to operate in favour of only such issue of Mr Scott of Sinton as might be alive at the date of the truster's death, excluding therefor Alexander, Mr Scott's youngest child, who was born subsequent to that period. Alternatively, they similarly maintain that the words ‘lawful issue of the body of my nephew’ mean the whole children of Mr Scott alive at 25th February 1903, being the date when John Michael Corse Scott (the eldest of their number) attained twenty-one, and that each member of the class then ascertained becomes entitled to payment of his share of the legacy in question as he or she attained or attains twenty-one, or, in the case of females, marries before that period.

The fourth party maintains that the words ‘whole lawful children’ in the seventh purpose of the settlement, and ‘lawful issue of the body’ in the codicil of 21st February 1890, are not limited to the children or issue alive at the death of General Scott, and he therefore adopts and concurs in the alternative contentions of the second and third parties.”

The opinion and judgment of the Court was requested upon the following questions—“(1) Are the ‘younger children’ of Mr Scott of Sinton, in whose favour the provision of £10,000 in the seventh purpose of General Scott's settlement is conceived, ( a) only those alive at the death of the truster, or ( b) only those alive at the period when the eldest of the class attained majority, or ( c) all children born or who may hereafter be born to Mr Scott, except the heir entitled to succeed to Sinton estate? (2) Are the beneficiaries under the provision of £10,000 in the seventh purpose of General Scott's settlement entitled to payment of their respective shares of the said provision as they respectively attain twenty-one, or, in the case of females, marry before attaining that age? (3) Are the ‘lawful issue of the body' of Mr Scott of Sinton, in whose favour the provision of £8000 in the codicil of 21st February 1890 is conceived, ( a) only those alive at the death of the truster, or ( b) only those alive at the period when the eldest of the class attained majority, or ( c) all children born or who may hereafter be born to Mr Scott? (4) Are the beneficiaries under the provision of £8000 in the codicil of 21st February 1890 entitled to payment of their respective shares of the said provision as they respectively attain the age of twenty-one, or, in the case of females, marry before attaining that age?”

Argued for the first parties—The trustees must hold till there was no possibility of the class being further increased. The gifts in favour of the children of John Scott were gifts to all his children whenever born. The English rule, limiting the gift to children born before the date when the oldest child attained majority, was merely arbitrary, and had not been adopted in the law of Scotland— Hope Johnstone v. Sinclair's Trustees, November 1, 1904, 7 F. 25, 42 S.L.R. 30; Ross v. Dunlop, May 31, 1878, 5 R. 833, 15 S.L.R. 580; Hayward's Executors v. Young, June 21, 1895, 22 R. 757, 32 S.L.R. 559.

Argued for the second and third parties—(1) The youngest child was excluded. The testator intended the classes to be fixed at the date of his death; (2) at all events, children born after the date when the oldest child attained majority were excluded. The classes must be ascertained at the respective periods of distribution— Wood v. Wood, January 18, 1861, 23 D. 338; Buchanan's Trustees v. Buchanan, May 26, 1877, 4 R. 754, 14 S.L.R. 503. These decisions absolutely ruled the present case. Here the date of distribution was, respectively, the date when the oldest child of the respective classes attained majority, for at that time he or she became entitled to payment. The date of first payment fixed the total number of legatees. If post nati were to be entitled to share, that would involve repetition, which was finally negatived in Ross v. Dunlop ( sup. cit.). Hope Johnstone ( sup. cit.) was altogether different. In that case there was no provision for division or payment in any of the events that had already happened. Trustees were directed “to hold” a fund in trust until the death of a liferenter. Before that date the class could not be definitely ascertained.

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Argued for the fourth party—The fourth party was born before the eldest child of either class attained majority. Having therefore been in life before the respective periods of distribution arrived, he was entitled to share in both funds.