A testator directed his trustees on the death of his wife to hold the residue for behoof of his children in liferent, and equally among them and their lawful issue in fee, and on the death of all his children to divide his estate among the children of his sons and daughters per stirpes. He directed that if any of his children died leaving issue, such child’s share of the income should belong to such issue. The son of one of the testator’s sons, who was dead, attained majority after the death of the testator’s widow, and thereupon claimed payment of one-third of the residue. Two of the testator’s children were still alive and had issue. It was admitted that a share of the residue had vested in the beneficiary who now claimed payment. He based his claim (1) upon the terms of the settlement, and also (2), when the case was argued in the House of Lords, upon the 17th section of the Entail Amendment (Scotland) Act 1868, he having been born after the death of the testator, and the testator having died after the passing of that Act.
Held ( aff. judgment of the Second Division) that he was not now entitled to payment or conveyance of any part of the residue, in respect (1) that the testator intended the residue to remain unsevered until the death of the last survivor of his children, and that the interests of the other present and ultimate beneficiaries might be prejudiced by severing the estate now; and (2) that the case was not within the provisions of section 17 of the Entail Amendment (Scotland) Act 1868, because the beneficiary claiming payment was not a liferenter but a fiar.
Miller’s Trustees v. Miller, December 19, 1890, 18 R. 301, 28 S.L.R. 236; and Yuill’s Trustees v. Thomson, May 29, 1902, 4 F. 815, 39 S.L.R. 668, approved, but explained and distinguished per Lord Davey.
Haldane’s Trustees v. Haldane, December 12, 1895, 23 R. 276, 33 S.L.R. 206, approved per Lord Davey.
One of the parties to a special case as to the effect of a trust-disposition and settlement having unsuccessfully appealed to the House of Lords against a unanimous judgment of the Second Division, the House of Lords found him liable in the expenses of the appeal.
Judges:
Lord Chancellor (Halsbury), Lord Macnaghten, Lord Shand, Lord Davey, Lord Robertson, and Lord Lindley
Citations:
[1903] UKHL 88, 41 SLR 88
Links:
Jurisdiction:
Scotland
Wills and Probate, Trusts
Updated: 13 June 2022; Ref: scu.630583