Scottish Court of Session Decisions

The late Abbe Chevalier Thomas Stewart left a trust-disposition and settlement whereby he provided that certain annuities should be paid out of the yearly proceeds of his trust-estate, and that the balance of these proceeds should be made over year

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by year to his brother George Stewart, and failing him, to John Stewart, his cousin. After the termination of these annuities, and the death of his brother and cousin, certain legacies were appointed to be paid out of the estate; and, quoad ultra, it was provided: “After all the foresaid purposes of the trust are fulfilled, for payment and delivery to the children of the said George Stewart, my brother, equally among them, of the free residue and remainder of my estate and effects, heritable and moveable, above conveyed; and in the event of his leaving no children, for payment out of and from the said residue of the sum of £3500, to the heir then in possession of the estate of Grandtully, in order to extinguish a like sum left to me by my late father, under the powers of Lord Aberdeen's Act, such heir being bound, in consideration thereof, to cancel the above part of the burden on the said estate, and not to raise other money upon that provision which was assigned to me; and the balance or remainder of the said free residue to the children of Archibald Douglas Stewart, my brother-german, equally among them; whom failing, to the children of Sir William Drummond Stewart of Grandtully, my other brother-german, equally among them; whom all failing, to my own nearest in kin.”

The annuitants, and George and John Stewart, are all dead. George Stewart died unmarried. The payment of £3500 has been otherwise provided for. And the question now arises—to whom the free residue of the trust-estate is to be paid?

Archibald Douglas Stewart, to whose children it is above provided in the first instance, is unmarried and sixty years of age. Sir William Drummond Stewart is a widower, upwards of seventy years of age, with only one child, Major William George Drummond Stewart. This last-mentioned gentleman claims the whole fund in respect of the failure of children of Archibald Douglas Stewart. On the other hand, the trustees of Abbe Stewart contend that they are entitled to retain the trust-estate till it be seen, 1 st whether Archibald Douglas Stewart will still have children; and 2 dly, whether, if he have not, Sir William Drummond Stewart will have any other children than Major Drummond Stewart.

The Lord Ordinary ( Kinloch) sustained the claim of Major Stewart.

In a note his Lordship, after a narrative of the facts as above, said—“The Lord Ordinary is of opinion that Major Drummond Stewart is entitled to the fund in medio, and to have it immediately made over to him. He considers it a fixed general principle that, when a bequest is made to the children of any individual, it is the children in existence at the time the bequest became payable who are entitled to take, and that children afterwards emerging have no right to partake in it. Whilst this is the general rule, it is competent to show from the terms of the deed that the testator meant something different, and intended the whole children born and to be born of the individual to share in the bequest. It would, in like manner, be competent to show that he intended the children in existence at the date of the deed, and no others. But unless there be made out an exceptional case, the general rule will hold good; and the children in existence at the time the bequest became payable will be exclusively entitled to it.

“In the present case, the trustees contended that, as in the primary bequest to the children of George Stewart it was only ‘in the event of his leaving no children’ that the substitution to the others took place, the same must be held the case in regard to the two other brothers, and the death of each must successively be waited for in order thereby to find out whether any or how many children he would have. But the reason of the special provision in the case of George is manifest. George Stewart was to enjoy during his life the interest of the fund, and as the fee did not open to his children till after his death, it was natural and fitting that the bequest should embrace all the children left by him. But the case of the other two brothers presents not a repetition of the case of George, but a contrast to it. The payment is to be made so soon as the fund is disengaged. It is provided to be made at exactly the same time with the payment of the £3500 to be paid to the heir of Grandtully; that is to say, it is to be an immediate cash payment. There is no liferent of the interest, and no provision for accumulation. The Lord Ordinary is of opinion that, the time of payment of the fund having arrived, payment must be made to the children who now answer the description contained in the settlement. Major Drummond Stewart is in this view the only one qualified to take.”

The trustees reclaimed.

Gifford and Watson for reclaimers.

Fraser and Scott for respondent.

At advising—