Scottish Court of Session Decisions

Mr Hugh Maclean of Westfield and Hythehill, in the county of Elgin, died on 8th April 1885, leaving a trust-settlement. By its terms the trustees were directed, after payment of debts, and making provision for certain alimentary annuities, to pay over the free yearly income of the estate, both heritable and moveable, to the testator's son John Alexander Maclean during all the days of his life, and if John Alexander Maclean should predecease his wife to pay her an alimentary annuity of £300 during her life. The testator further provided—“ Eighth, After the death of the said John Alexander Maclean, my son, and within a period of twelve months after that event shall occur, if he shall leave lawful issue, I hereby direct my said trustees to dispone and convey my said lands and estates of Westfield, Inchshaggarty, and Inchbrock, particularly above described, and my dwelling-house at Hythehill, with offices and garden, and my plate and pictures, to the eldest son of the said John Alexander Maclean, and the lawful heirs of his body, whom failing to the second son of the said John Alexander Maclean, and the lawful heirs of his body…. And in regard to the residue of my estate, if it should happen that the said John Alexander Maclean should leave more than one lawful child of his body, I hereby direct and appoint my trustees, after the lapse of twelve months from the death of the said John Alexander Maclean, to divide and apportion the said residue of my estate among the said children equally and share alike, the heir succeeding to the estates of Westfield, Inchshaggarty, and Inchbrock being entitled to receive an equal share of the residue of my estate along with the other children…. Ninth, In the event the said John Alexander Maclean should die without any lawful descendants of his body, then and in that event I hereby direct and appoint my said trustees, within twelve months after the death of the said John Alexander Maclean, or so soon thereafter as circumstances will permit, after making due provision for all the annuities, legacies, and bequests herein contained or referred to, and for the complete fulfilment of this my deed of settlement, to dispone and convey my said lands and estates of Westfield, Inchshaggarty, and Inchbrock, specially above described, and my dwelling-house of Hythehill, offices and garden, with my plate and pictures, to James Maclean, my nephew, son of the said James Maclean, my brother, and the lawful heirs of his body; whom failing to George Maclean, my nephew, a younger son of the said James Maclean, my brother, and the lawful heirs of his body; whom also failing to my nearest lawful heirs whomsoever; and with regard to the residue and remainder of my means and estate, I, in the event of my son dying without lawful descendants of his body, and within twelve months after that event, or so soon thereafter as circumstances will permit, direct and appoint my said trustees to apportion and divide the said residue among the children of my said brother James Maclean, equally and share and share alike, whom I hereby appoint to be my residuary legatees, declaring hereby that the member of the family succeeding to my said heritable estate of Westfield and others, specially above described, shall also be entitled to a share of the residue along with the others.” The truster then made provision for the case of children of predeceasing children, and then followed this declaration, “that the share of succession effeiring to the said residuary legatees shall become vested interests in their persons at and only upon the period of payment above mentioned,”

John Alexander Maclean died on 12th January 1888. The fact of his death was at once communicated to James Maclean, who was then acting Commissioner of the Courts of Requests and Police Magistrate, Jaffna, Ceylon. So soon as he could make the necessary arrangements he came home, arriving in this country in the beginning of April. Both at the date of John's death in January, and when James arrived in this country in April 1888, the estate of Westfield consisted of the farm of Westfield, in the occupation of a tenant holding under lease granted by the first parties for nineteen years from Whitsunday 1886, at a rent of £330, and the farms of Surradale and Orchardfield in the natural occupation of the first parties as proprietors in trust, at a rental of £740; and the personal estate under the charge of the first parties, out of a gross total of

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£48,000 odds, included a number of stocks and shares which could be easily and quickly realised, and £20,950 of heritable securities convertible into cash on three months' premonition prior to a term of Whitsunday or Martinmas. The only asset of importance in point of amount which was not capable of early realisation was the stock, crop, and implements on the farms of Surradale and Orchardfield, the amount of which was a little over £5000. At the request of James the first. parties let the same on a lease for nineteen years from Whitsunday 1888 as to the houses, grass, and fallow-land, and at the separation of the crop from the ground as to the land under grain crop. James died intestate on 24th June 1888. He was unmarried, but was survived by an older brother and sister, Hugh Maclean and Elizabeth Maclean, and by a younger brother George Maclean. At the time of his death the parties of the first part had not made the conveyance in his favour of the heritable estate specified in the ninth purpose of the trust, with the plate and pictures as directed in the said ninth purpose, nor had they apportioned and divided the residue of the estate.

Questions having arisen as to the distribution of the estate, the present case was presented to obtain the judgment of the Court by (1) the testamentary trustees of the testator, (2) George Maclean, and (3) Hugh Maclean and Elizabeth Maclean.

The second party maintained that the residue could only vest on actual payment, and that consequently no share therein vested in James. He also contended that he had the exclusive right to the plate and pictures, as being part of the subjects falling to be conveyed to him with the heritage as heir of provision under the settlement.

The third parties maintained that the provisions in the testator's settlement in favour of the deceased James Maclean vested in him on the testator's death, subject to defeasance in the event of John Alexander Maclean being survived by lawful descendants, or otherwise that the said provisions vested in James Maclean at the death of John Alexander Maclean. They admitted that the second party took the heritage originally belonging to the testator as heir-at-law of James Maclean, but contended that the plate and pictures fell into residue, or, at all events, fell to be dealt with in the same manner as the residue. They further maintained that in ordinary course the residue of the estate should have been apportioned and divided among the residuary legatees before James' death, and that the fact of this not having been done could not prejudicially affect their interests in the succession.

The first parties contended (1) that by the terms of the settlement they were not bound to divide the residue until twelve months from John's death had elapsed, and (2) that in ordinary course it was not practicable to do so sooner, having regard to the magnitude of the estate and the nature of the investments; to the facts that until the crop of 1888 of the farms of Surradale and Orchardfield had been reaped, and the proceeds got in, and the rents of Westfield falling under John's executry had been collected, the residue in the sense of the settlement had not been ascertained, and they could not proceed to apportion and divide.

The following questions were submitted for the opinion of the Court—“(1) Did a share of the residue vest in the person of the deceased James Maclean? (3) Do the plate and pictures form part of or fall to be dealt with in the same manner as the residue, or do they fall to be conveyed to the second party along with the heritage?”

Argued for the first and second parties—(1) As regards the residue—The testator had expressly postponed the period of payment, which was the declared period of vesting, till after John Alexander Maclean's death. The provision was that the trustees were to divide the residue “within twelve months after that event, or so soon thereafter as circumstances will permit.” The testator meant by this to give his trustees twelve months from John's death in which to realise, and as much additional time as circumstances rendered necessary. That was the only reasonable contention, and derived aid from the provisions under the 8th purpose as to the residue in the event of John leaving issue. In these circumstances he had directed the trustees to make the decision “after the lapse of twelve months from the death” of John. He clearly anticipated that the trustees would require twelve months at least for realisation of the estate. That being the sound construction of the claim in question, no vesting had taken place in James, who only survived John six months, unless it could be shown that the trustees had unduly delayed to realise— Howat's Trusteesv. Howat, &c., December 7, 1869, 8 Macph. 337, and 42 Scot. Jur. 116; Sutherland's Trustees v. Clarkson, October 29, 1874, 2 R. 46; Thorburn v. Thorburn, February 16, 1836, 14 S. 485, and 8 Scot. Jur. 239. The case of Ferrier did not conflict with the cases of Howat's Trustees and Thorburn — Ferrier v. Ferriers, May 18, 1872, 10 Macph. 711, and 44 Scot. Jur. 390. (2) As regards the plate and pictures—A testator had the power to impress a substitution on his personal estate, and it was always a question of intention whether he had done so. Though the presumption of law was against a substitution in moveables, and in favour of a conditional institution, that presumption might be overcome. There was undoubtedly a substitution impressed on the heritable estate here, and the testator dealt with the plate and pictures along with the heritable estate. Plate and pictures, also, were not like money, of an evanescent character, but were as definite in character as heritage. In this the testator had evidently intended a substitution, and it should be given effect to, the first beneficiary not having evacuated the destination— Ramsay v. Ramsay, November 23, 1838, 1 D. 83.

Argued for the third and fourth parties—(1) As regards the residue—Vesting took place at John Alexander Maclean's death. That was the period of payment. The trustees were directed to realise so soon after John's death as possible. James therefore having survived John by six months had taken a vested interest in the residue— Ferrier v. Ferriers, May 18, 1872, 10 Macph. 711,. and 44 Scot. Jur. 390. The survivance of the period of payment was the important element— Bryson's Trustees v. Clark, &c., November 26, 1880, 8 R. 142. In all the cases cited by the other parties the direction was

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—“In the event of” (the person nominated) “predeceasing me or dying before receiving payment.” In Throburn's case, 14 S. 487, Lord Corehouse expressed himself thus—“Mr Thorburn directs that as soon after his death as may be thought prudent… his trustees shall divide the residue … among his brothers and sisters. If the deed had stopped there, there would have been room to hold that as John Thorburn survived his brother his share should be holden as vested whether the trustees had actually proceeded to the allocation.” That doctrine was directly applicable here. In any view, the trustees could and ought to have realised before James' death, and paid him his share, which must therefore be held to have vested in him. (2) As regards the plate and pictures—The beneficiaries' interests in them must be the same as if the trustees had done their duty and conveyed them without undue delay. The presumption of law which was against a substitution in moveables was not displaced here. The presumption was not displaced by the fact that the plate and pictures were conveyed by the same clause as the heritage— M'Dowall v. M'Gill, June 19, 1847, 9 D. 1284, and 19 Scot. Jur. 555; Bailie v. Grant, May 21, 1859, 21 D. 838, and 31 Scot. Jur. 465; Walker's Executors v. Walker, June 19, 1878, 5 R. 965; Campbell v. Campbell, June 19, 1740, M. 14,855; Brown v. Coventry, June 2, 1792, Bell's Octavo Cases, 310, and M. 14,863.

At advising—