Scottish Court of Session Decisions

John Laurie Coulson, brewer in Glasgow) and others, testamentary trustees of George Francis Coulson, brewer in Glasgow, hereinafter called the testator, first parties; (2) ( a) the said John Laurie Coulson, who was a son of the testator, and ( b) Frank William Coulson and others, the testamentary trustees of Frank Coulson, another son of the testator, second parties; (3) Edwin George Coulson and others, the children of the said Frank William Coulson, third parties; (4) George Francis Laurie Coulson and another, the pupil children of the deceased George Francis Coulson junior, another son of the testator, fourth parties; (5) the said John Laurie Coulson and another, the testamentary trustees of the deceased Alfred Henry Coulson, another son of the testator, fifth parties; (6) Charles Callam Coulson, another son of the testator, sixth party; (7) William Arthur Coulson, another son of the testator, seventh party; and (8) Janetta Isabella Laurie Coulson, the testator's daughter, eighthparty; presented a Special Case dealing with the testator's trust-disposition and settlement.

The testator's trust-disposition and settlement provided—“( Eighth) Upon the death of the said Mrs Janet Isabella Laurie or Coulson, and when sufficient funds shall have been realised from my estate and be available, I legate and bequeath and direct and appoint my said trustees to make payment to each of my sons, the said George Francis Coulson, Alfred Henry Coulson, and William Arthur Coulson, of a further legacy of £1500 sterling: ( Ninth) On the further realisation of my said estate after the death of the said Mrs Janet Isabella Laurie or Coulson, I legate and bequeath and direct and appoint my said trustees to make payment to the said John Laurie Coulson of the sum of £1500; to the said Frank Coulson of the sum of £1500; and to the said Charles Callain Coulson of the sum of £2000; Declaring, however, that should my said estate not yield sufficient funds for payment in full of the legacies by this article bequeathed, the same shall be proportionally diminished to the extent of the deficiency: ( Tenth) In the event of the foregoing legacies not exhausting the whole residue of my estate, I legate and bequeath and direct and appoint my said trustees to divide and pay and make over whatever balance may remain to and among my children, the said John Laurie Coulson, Frank Coulson, Charles Callam Coulson, George Francis Coulson, Alfred Henry Coulson, William Arthur Coulson, and Janetta Coulson; Declaring that in the event of the death of any of my said sons before the time of payment of any of the foresaid legacies or shares of residue above provided to them respectively leaving lawful children, I direct and appoint my said trustees to hold and apply the interest or annual produce of said legacies and shares of residue bequeathed to such deceasing son or sons for the maintenance, education, and upbringing of his or their lawful children until the youngest shall attain the age of twenty-one years complete, when I direct and appoint my said trustees to divide and pay over the fee of said legacies or shares of residue hereby bequeathed to such deceasing son or sons, equally among his or their lawful children or their issue, share and share alike, per stirpes; and should any of my said sons die without leaving lawful issue, survived by any wife he or they may marry, I direct and appoint my said trustees to pay over the interest or annual produce of said legacies or shares of residue to such deceasing son's widow during her lifetime as an alimentary provision allenarly, and upon her death I direct and appoint my said trustees to divide and pay over the fee of said legacies bequeathed to such deceasing son or sons to and among my surviving children and

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the issue of deceasers, share and share alike, per stirpes.”

The question of law, upon which the case is reported, was—“1. ( a) Did the legacies and shares of residue bequeathed to the testator's sons by the eighth, ninth, and tenth purposes of his trust-disposition and settlement vest in them a morte testatoris? Or ( b) did these legacies and shares of residue vest in the testator's sons a morte testatoris, subject to defeasance in the case of such of them as might predecease the time of payment leaving lawful children? Or ( c) was vesting postponed until the time of payment of the said legacies and shares of residue”?

The following narrative is taken from the opinion of Lord Dundas:—“The late Mr Coulson, brewer in Glasgow, died in 1883, leaving a trust-disposition and settlement dated in 1876. This Special Case has been brought for the determination of various questions as to the construction of certain clauses in the settlement. Mr Coulson was survived by his widow, who died in 1909, and by their whole family, which consisted of six sons and a daughter, named respectively (I shall use throughout, for the sake of brevity, the first name only in each case) John, Frank, Charles, George, Alfred, William, and Janetta. Three of the sons — Frank, George, and Alfred—predeceased their mother. The other three sons and the daughter are still alive. Frank and George left issue, who survive. Alfred was never married. The daughter is now fifty-nine years of age, and parties are agreed in stating as a fact that she is incapable of ever having a child. George had prior to his death granted a bond and assignation in security for £2000 in favour of his brother John over his whole share and interest, present, future, or contingent, in his father's estate; and Alfred had granted a similar bond in favour of John for £2030 (now reduced to £554). Each of the deceasing sons—Frank, George, and Alfred—left a settlement conveying his estate to testamentary trustees or executors. … I need not refer to the first five purposes of Mr Coulson's settlement, which have been duly implemented. By the sixth purpose he directed his trustees to hold the whole residue of his estate and pay the free annual produce thereof to his widow for her alimentary use allenarly; and Mrs Coulson enjoyed this liferent until her death. I do not here advert to the seventh purpose, which will require to be separately noticed at a later stage. By the eighth purpose, upon the death of Mrs Coulson, and when sufficient funds should have been realised from the estate and be available, the truster legated and bequeathed and directed and appointed his trustees to make payment to each of his sons George, Alfred, and William of a further legacy of £1500 in addition to legacies which he had left them by an earlier clause in the settlement. By the ninth purpose the truster directed that on the further realisation of his estate after the death of his widow, his trustees should pay to John £1500, to Frank £1500, and to Charles £2000, declaring, however, that should his estate not yield sufficient funds for payment in full of the legacies by this article bequeathed, the same should be proportionately diminished to the extent of the deficiency. It is stated in the case that the truster's estate, after setting aside the sums required to meet the legacies provided by the eighth purpose, and a provision of £3000 (to which I shall refer later) for behoof of his daughter under the seventh purpose, is insufficient to meet in full the legacies provided by the ninth purpose. The tenth purpose (which is the only other clause of the settlement requiring notice at present) is so important that I shall quote it at length ( v. sup.).”

The contentions of parties were thus stated:—“13. The second parties contend that vesting took place a morte testatoris of the legacies bequeathed by the eighth and ninth purposes and the shares of residue bequeathed by the tenth purpose.… The fourth parties contend that vesting took place a morte testatoris but subject to defeasance in the case of those children who predeceased the liferentrix (Mrs Coulson) leaving issue, and that their shares pass to their issue as conditional institutes unaffected by their parents'acts and deeds, or alternatively that vesting was postponed until the death of the said liferentrix. The fifth parties contend … that vesting of the fee of said legacies and shares of residue took place absolutely in the testator's sons a morte testatoris, or alternatively a morte testatoris, but subject to defeasance only in the case of those children who predeceased the time of payment leaving issue.… The third, sixth, and seventh parties contend that vesting was postponed until the time of payment.”

Argued for the fourth parties—The legacies bequeathed by the eighth and ninth purposes, and the shares of residue bequeathed by the tenth, vested in the sons a morte testatoris, subject to defeasance in the case of a son predeceasing the liferentrix leaving issue. The provision with regard to a son dying leaving a widow had reference to the case of a son dying before the testator. There could be no vesting absolutely a morte, and on the ratio of Cairns' Trustees v. Cairns, 1907 S.C. 117, 44 S.L.R. 96; Wylie's Trustees v. Wylie, December 10, 1902, 8 F. 617, 43 S.L.R. 383, vesting was subject to defeasance. Alternatively, if vesting were not a morte subject to defeasance, then it must be postponed to the death of the liferentrix.

Argued for the fifth parties—The said legacies and shares of residue vested absolutely a morte. There was, to begin with, an absolute gift in favour of the sons, and unless the subsequent declaration carried that gift elsewhere, vesting took place a morte — Greenlees' Trustees v. Greenlees, December 4, 1894, 22 R. 136, 32 S.L.R. 106; and if the subsequent declaration were repugnant, it would not receive effect — Miller's Trustees v. Miller, December 19, 1890, 18 R. 301, 28 S.L.R. 236. In the foregoing respect the case was distinguishable

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from cases like Bryson's Trustees v. Clark November 26, 1880, 8 R. 142, 18 S.L.R. 103· Alternatively counsel adopted the argument in favour of vesting a morte subject to defeasance. Counsel also referred, on the question of disposal of lapsed shares, in the event of vesting being held to be postponed, to M'Laren's Wills and Succession (3rd ed.), i. pp. 591, 594; Theobald's Law of Wills (7th ed.), pp. 229, 232, 235,

The second parties adopted the argument of the fifth parties, that vesting took place a morte absolutely, and alternatively argued that vesting was postponed till the death of the liferentrix. There could not be vesting subject to defeasance. The gifts from clause 7 onwards all began with the words “upon the death” of the liferentrix. The last words of the tenth clause, constituting as they did a survivorship clause, effectually postponed vesting. A contingency was there contemplated which affected each son's share, and it could not be determined till the death of the liferentrix whether that contingency had arisen or not. If it did arise, then in virtue of the survivorship clause the objects of the gifts could not be ascertained until some subsequent date — the death of the widow of a son who had predeceased the liferentrix without leaving issue. That alone was enough to distinguish the case from Penny's Trustees v. Adam, 1908, S.C. 662, 45 S.L.R. 481, and Cairns' Trustees v. Cairns ( cit.). In any event, the doctrine of vesting subject to defeasance had never received effect where defeasance would be operated by more than one contemplated contingency, and here there were two.

The third parties adopted the argument that vesting was postponed, and also cited Muir's Trustees v. Muir, July 12, 1889, 16 R. 954, 26 S.L.R. 672; and Young v. Robertson, 1862, 4 Macq. 314.

The sixth party also adopted the argument in favour of postponed vesting, and cited Burnets v. Forbes, 1783, M. 8105.

The seventh party adopted the argument in favour of postponed vesting.

At advising—