Court of Session Inner House Second Division – A testator by his trust-disposition and settlement directed his trustees to pay the whole income of his estate to his widow, and upon her second marriage or death to hold the residue of his estate for behoof of his children till the youngest of them should reach majority, when the trustees were to divide and pay over the same equally among the children, declaring that the issue of children predeceasing the time of division should succeed to their parent’s share. By a codicil he authorised his trustees to advance to sons on their attaining majority, or to daughters on their attaining majority or being married, a sum not exceeding one sixth of the share of his estate which would ‘probably fall to each child,’ such advances to be debited to such child and deducted from his share when it fell to be paid, and further provided that any of his children being major and unmarried and not desiring to reside in family with his widow, should ‘receive the whole income from the approximate amount of their shares in proportion to the income which might be derived from’ his estate. The widow took her legal rights and so forfeited her provisions under the settlement.
Held (diss. Lord Young) (1), following Wilson’s Trustees v. Quick, February 28, 1878, 5 R. 697, that the provisions in favour of the children vested a morte testatoris; and (2), following Miller’s trustees v. Miller, December 19, 1890, 18 R. 301; Wilkie’s Trustees v. Wight’s Trustees, November 30, 1893, 21 R. 199; Greenlees’ Trustees v. Greenlees, December 4, 1894, 22 R. 136; and Stewart’s Trustees v. Stewart, December 17, 1897, 35 S.L.R. 298, that the widow’s interest being now at an end, the direction to postpone payment till the youngest child attained majority was ineffectual, as being repugnant to the children’s vested right of fee, and that consequently those of the children who had attained majority were now entitled to immediate payment of their shares. Adam’s Trustees v. Carrick, June 18, 1896, 23 R. 828, distinguished, commented on, and doubted.

Citations:

[1898] SLR 35 – 488

Links:

Bailii

Jurisdiction:

Scotland

Wills and Probate

Updated: 17 April 2022; Ref: scu.612165