Scottish Court of Session Decisions

Major-General Hugh Lindsay Christie died on 20th September 1888 leaving a holograph will or general settlement dated 14th March 1887, whereby he appointed trustees, and made provision for his wife. He further provided—“To my three children I leave all the rest of my property, consisting of stocks and shares, or whatever belongs to me at my death. To be divided equally. My money being principally in stocks and shares, I do not wish these to be uplifted unless it should be advisable so to do. My trustees are to invest my money or leave it invested in any fairly good security without limitation. Any share that my daughter Mary Agnes may reoeive, to go direct to her and her children Failing the above mentioned, her share to return to her nearest of kin, except her husband shall have the liferent. My daughter Hughina Margaret's share I settle in like manner, excepting in the event of her decease without issue her share shall return to her nearest of kin. Also my trustees shall retain charge of her share. It is not to go into her hands. The same with reference to my son Charlers, his share to remain in the hands of my trustees for his behoof. In the event of his demise, his share to return to his nearest of kin.”

The testator was survived by his wife, his two daughters, and his son. His daughter Mrs Mary Agnes Christie or Murray had one child, and by her antenuptial contract of marriage she was bound to pay over to her marriage-contract trustees all acquirenda excepting sums not exceeding £100 each. His daughter Mrs Hughina Margaret Christie or Rowland had no marriage-contract, and there were no children of the marriage. His son Charles Robert Christie was under curatory, and had been since 1884 an inmate of the Dundee Royal Lunatic Asylum.

Various questions having arisen in regard to the rights of parties under the said settlement, a special case was submitted to the Court for their opinion by (1) the testator's testamentary trustees, (2) Mrs Murray's marriage-contract trustees, (3) Anthony Hugh Murray, Mrs Murray's only child, and his father, as his administrator-in-law, (4) Mrs Murray, (5) Mrs Rowland, and (6) Charles Robert Christie's curator bonis.

The questions of law were as follows:—“1 (a) Did the fee of the share of testator's estate bequeathed to his daughter Mrs Mary Agnes Christie or Murray vest in her a morte testatoris, and is the capital of it now payable by the first parties, General Christie's trustees, to the second parties as her marriage-contract trustees? 2 ( a) Did the fee of the share bequeathed to the testator's daughter Mrs Hughina Margaret Christie or Rowland vest in her a morte testatoris, and are the first parties bound to pay the capital now to her? or ( b) Are the first parties bound to hold the fee of this share? 3 ( a) Did the fee of the share bequeathed to the testator's son Charles Robert Christie vest in him a morte testatoris? (b) Are the first parties bound to pay the capital thereof now to the party of the sixth part as his curator bonis? or (c) Are the first parties bound to retain the capital?”

Argued for the first parties—It was evidently the intention of the truster that there should be a continuing trust. There was no direction to realise and pay. On the contrary, the money invested was not to be uplifted, but was to be left invested. The widow was to pay a rent for the use of certain premises, and Mrs Murray's husband was to have the liferent of his wife's share in the event of her predecease. The case might be regarded as falling either under the principle of Duthie's Trustees v. Kinloch, June 5, 1878, 5 R. 858, in which case the children of the testator would have only a liferent, the fee being in their issue, or under that of Massy v. Scott's Trustees, December 5, 1872, 11 Macph. 173, in which case, although the fee would be held to vest a morte in the testator's children, their issue would have a protected right of succession. The Lord Justice-Clerk (Moncreiff)

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pointed out in the case of Duthie's Trustees that the case of Lady Massy, and the subsequent case of Gibson's Trustees, only applied where the testator had failed to provide a machinery for protecting the succession. Here there were trustees. Even if Mrs Murray were entitled to receive her share, the position of Mrs Rowland and Charles Robert Christie was very different. The testator had declared that the trustees should “retain” their shares, and therefore they could not demand immediate payment.

Argued for the second and fourth parties—Whatever might be said as to Mrs Rowland's share, there was no doubt that Mrs Murray's came to herself in fee, and therefore fell to be paid over to her marriage-contract trustees. There was no protected succession. It was “to go direct to her and to her children.” The destination to herself and her children was just a destination to herself. The clause beginning “failing the above mentioned” meant failing her without children in the testator's lifetime. Mrs Murray was in a more favourable position than Lady Massy, because there the money was “to be settled by my said trustees on herself and her issue,” and yet even there the Court said the trust was not to be kept up— Massy v. Scott's Trustees, December 5, 1872, 11 Macph. 173, followed in Gibson's Trustees v. Ross, July 12, 1877, 4 R. 1038; Ferguson's Trustees v. Hamilton and Others, July 13, 1860, 22 D. 1442; Allan's Trustees v. Allan and Others, December 12, 1872, 11 Macph. 216; Houston or Mitchell v. Mitchell, November 17, 1877, 5 R. 154; Beveridges v. Beveridge's Trustees, July 20, 1878, 5 R. 1116.

Argued for the third party—His mother Mrs Murray had only a liferent. The fee had vested in him as representative of a class. The trustees were bound to invest the money and pay the income to his mother in liferent, and to divide it among the children at her death— Keating and Others, June 17, 1870, 7 S.L.R. 548; Duthie's Trustees, supra.

Argued for the fifth party—There were no words used depriving Mrs Rowland of the absolute fee. Her share was settled in like manner to that of Mary Agnes, who undoubtedly got a fee. Alternatively she got the fee, but the trustees were to see she did not dispose of the money except for onerous causes.

Argued for the sixth party—He was in the same position as the fifth party whose argument he adopted.

At advising—