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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jackson & Macfarlane v. M'Millan and Another [1876] ScotLR 13_388 (18 March 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0388.html Cite as: [1876] SLR 13_388, [1876] ScotLR 13_388 |
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Page: 388↓
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A testator declared his wish to be that his wife, should she survive him, should have the liferent of his house and the interest of his money, and that at her death all his personal property should be divided amongst his younger children, or, if dead, their nearest lawful heirs, share and share alike. Trustees were appointed for carrying his will into effect.— Held that these shares vested in the children upon the death of the testator.
Observations (per the Lord Justice-Clerk) upon the practical tests to be applied to such cases.
Thomas Sproat of Kirkcudbright, by will dated 16th November 1853, declared his wish to be that his wife should “have her lifetime of the whole of the house and premises now occupied by me, as well as the interest of all monies that may be due me, or lying in the bank, or lent out on bills or receipts, and that during her natural life; and that at her death my said cash, property and all other effects (with the exception of my dwelling-house, offices, and field of ground, which I wish to be given to my eldest son William, or his heirs lawfully begotten) shall be equally divided between my other children, or, if dead, their nearest lawful heirs, share and share alike, and should their respective shares prove of more value than the house and property to be William's, my wish is that a portion of cash, to make his share equal to the others, be added to his property, so as all my children may receive an equal share in value, and that the bills for lent cash to William and John be counted as part of
Page: 389↓
their respective shares, or paid up to their mother, as she has a life interest in the whole of my effects, and as my son David has been assisting me in my trade these many years, is very likely to carry it on after my decease, and to take up my vessels at a valuation, and seeing that he has had no fixed salary, and received nothing from me except his bed and board and clothing, and the sloop ‘Friends’ already in his name, but the profits of her has been regularly received by me, my wish is that he should have £200 sterling as well as the sloop ‘Friends,’ over and above his equal share of my effects with his brothers and sisters. The above is the substance of my will and testament, and to see the above testament put into effect I do hereby appoint the Reverend John M'Millan of the Free Church, and Mr Thomas Whitewright, druggist of this town, my executors and trustees for carrying out my wishes as stated above.” Mr Sproat died in July 1854, survived by his widow and several children. Three of the children died during the life of their mother, who survived until 1874. One of these children, John, died in 1865, and after his death his estates were sequestrated. The present action was brought by the trustee upon his estates, along with a creditor to whom the trustee's right had been assigned, against Mr Thomas Sproat's testamentary trustee, for the purpose of recovering the share of his father's estate which the pursuers maintained had vested in John. The defender maintained, that as he had predeceased the liferentrix he had taken no vested right under his father's will.
The Lord Ordinary pronounced the following interlocutor:—
“ Edinburgh, 15 th November 1875.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record and whole process, Finds that according to the sound construction of the will and testament of the deceased Thomas Sproat, dated 16th November 1853, and recorded in the Register of Deeds and Probative Writs kept for the stewartry of Kirkcudbright, the 25th day of July 1854, the provisions made in the said will in favour of the children of the said Thomas Sproat vested in them at the death of the testator: Finds that the share of the testator's estate to which the deceased John Sproat, one of his sons, was entitled, passed to the pursuer Thomas Jackson, as trustee on the sequestrated estate of the deceased John Sproat, and that the same has been assigned by the said trustees in favour of the other pursuer George Macfarlane, to the effect and extent set forth in the assignation, dated 4th, 8th, and 12th June 1875, mentioned in the condescendence: Finds that the defenders, as executors of the said Thomas Sproat, are bound to account to the pursuers for their intromissions with the means, estate, and effects of the said Thomas Sproat, and to pay to the pursuers the share of said means, estate, and effects effeiring to the said John Sproat, but under deduction of such sums as the defenders shall establish to have been lent by the testator to the said John Sproat on bill, and interest thereon from the date of the testator's death, in so far as the same was not paid by the deceased John Sproat to his mother or to the defenders, and of such sums of principal and interest as they shall establish to have been advanced by them to the said John Sproat, and to be still resting-owing to them; and before farther answer appoints the cause to be enrolled, in order that the necessary steps may be taken for having the amount of the said John Sproat's interest in his father's estate, and of the defenders' counter claims, ascertained, reserving all questions of expenses.”
The following is the important portion of the Lord Ordinary's note:—
“The defenders, who are the executors and testamentary trustees of Thomas Sproat, maintained in opposition to the pursuers, the trustee on John Sproat's sequestrated estate and his assignee, that the shares of Thomas Sproat's estate provided to the children did not vest in any of them at the death of the testator, or until the death of the liferentrix. I am of opinion that the defenders' construction of the settlement of Thomas Sproat is not the sound one, and that the shares of the children vested at the death of the testator, and that only the payment was postponed until the death of the liferentrix. The settlement was executed by the father, and purports to deal with his whole estate, and to divide the same equally among all his children, subject to the liferent of their mother, and without any destination to survivors or any ulterior destination except to the ‘lawful heirs’ of the children themselves. I think that there is here no reason for holding that the vesting was suspended until the period of distribution, or that the payment was postponed for any other purpose than to secure the widow's liferent. The cases of March-banks, 14 Sh. 521, and Cochrane, 17 D. 103, particularly the latter, appear to me to resemble the present in all essential particulars, and in both the interposition of a liferent was, in the absence of a survivorship clause or destination over, held insufficient to suspend vesting.
Various other considerations strengthen the view which I have taken of the meaning of the present settlement, and, in particular, the declarations—(1) That the bills for lent cash to William and John, two of the sons, should be counted as part of their respective shares; and (2) That David, another son, should receive (obviously at the testator's death) a payment of £200, and possession of the sloop ‘Friends’ ‘over and above the equal share of my effects with his brothers and sisters,’ all tending to show that the testator regarded the liferent of the mother as merely a burden upon his children's shares, and not as postponing the vesting of their interest until her death. In short, the ‘lawful heirs’ of the children, ‘if dead,’ were merely conditional institutes appointed to take in the event of the children themselves predeceasing their father, the testator.
Sproat's trustees reclaimed.
Argued for them—The period contemplated by the testator was the death of the liferentrix. It was then that the trustees were to realise the estate and divide it among the children in life and the heirs of those who had predeceased. There was in this case no direct bequest or gift to the children, and in this respect it differed from the cases in which it had been decided that vesting took place a morte testatoris.
Authorities— Provan v. Provan, Jan. 14, 1840, 2 D. 298; Learmonth v. Miller, May 3, 1875, 2
Page: 390↓
Ret. (H. of L.) 60; Young v. Robertson, Feb. 1862, 4 Macq. 314. At advising—
In mortis causa settlements, legacies and provisions are presumed to take effect and vest from the testator's death; and in the case of provisions to the testator's immediate children this presumption is unusually strong. The postponment of the term of payment has of itself no effect in overturning this presumption. In every executry estate some time must elapse before the funds of the deceased can be realised, and sometimes from the nature of the investments the interval may be considerable. But this does not prevent vesting from taking immediate effect. A postponed term of payment only affects vesting when it is adjusted as a condition of the gift itself, and is not merely a burden or a qualification of the right. Thus, when a testator postpones payment of the fee in order to provide for a temporary and intermediate interest in the income or produce of the estate, such as a liferent or an annuity, vesting takes place notwithstanding a morte testatoris, because the interposed interest is only a burden on the gift. The legacy is unconditional, although the enjoyment of it is qualified. The legacy vests, but only under the qualification that the legatee shall not be entitled to demand payment until the specified time arrive. The other class of cases, which is entirely distinct, includes those in which survivance of the term of payment is a condition of the legacy itself, and in which there is no legacy unless the condition be fulfilled. In these cases survivance of the term of payment is of the essence of the gift. In order, therefore, to determine in any given case whether survivance of such a term be a condition of the gift, or the postponement be only a burden on it, it is of the last importance to ascertain what is the primary object of the testator in postponing payment, and if the words indicate that the primary object was to secure an interposed interest, especially if they disclose no other, the presumption is strong that the legacy is not conditional, and that its enjoyment only is qualified.
It is this consideration which gives importance to any ulterior destination which may be adjusted to the gift, for if there be any separate and independent interest contingently favoured, it will then be easier to presume that favour to that interest was in part at least the reason for postponing payment. But to have this effect the interest must be substantially separate, and such as to indicate special favour on the part of the testator. But a legacy to A and his heirs, or A and his children, is not the separate institution of a new and independent object of the testator's bounty, but the expression of a derivative interest favoured by the testator only out of regard to the legatee, whose children or heirs are mentioned. They only find a place in the destination through the relation which they have to the persona predilecta, and in cases like the present, in which the gift is only inferred from the direction to divide, the instruction to the trustees to pay to the heirs of the legatee if he predecease the period of division may be regarded more as the natural result of the legacy having vested than as an indication of the postponement of vesting.
There may of course be words used by the testator in fixing a postponed period of division, which, without any destination over, indicate a postponement of vesting also, as for instance considerations personal to the legatee himself, or relative to the property bequeathed. But in the present case no such elements occur. The sole object for the postponement of the term of payment which is disclosed in this writing is the protection of the widow's liferent. The case of Marchbanks, referred to by the Lord Ordinary, is precisely in point.
I should have held, therefore, from the words I have read, that this provision vested in John Sproat. It is true that there are no words of gift or bequest apart from the direction to divide. But in an informal memorandum of the testator's testamentary wishes, such as the present, I consider this element as of no consequence.
The rest of the document entirely confirms this view. There follows a provision in regard to certain bills for lent cash due by William and John, as to which he provides that they “be counted as part of their respective shares, or paid up to their mother, as she has a life-interest in the whole of my effects.” The plain meaning of this is, that the share devolving on the two sons shall at once be imputed in extinction of these bills, but that if their mother survives the testator the sons shall account to her for the interest during her life. I think it is plain that it was not intended that William and John should pay up the principal to the executors and trustees, who are afterwards named.
The provision in regard to his son David, which immediately follows, leads to the same inference. He is to be entitled to the sloop “Friends,” which stood in his name, and that plainly from the death of the testator, as the
Page: 391↓
The Court adhered.
Counsel for Pursuers— Gloag—M'Laren. Agents— Ronald, Bitchie, & Ellis, W.S.
Counsel for Defenders— Asher—Keir. Agent— David Milne, S.S.C.
