A truster directed his trustees to hold the residue of his estate for behoof of his children ‘under the exceptions and modifications to be afterwards stated, ‘ declaring that the shares should vest at his death and be payable six months thereafter. He gave his trustees power to postpone payment so long as they should see fit, and to restrict the right of any child to a liferent, creating a new trust if necessary to effect that end. The trustees paid certain portions of the capital and the whole of the income of his share to one of the children. Thereafter certain of his creditors arrested his share of the residue in the hands of the trustees, and raised an action of forthcoming. After this action was raised, the trustees executed a deed whereby they restricted the right of the beneficiary to a liferent, and declared his share of the residue to be vested in themselves as an alimentary fund for behoof of the child in liferent and his children in fee. Held ( rev. the judgment of the majority of the First Division) that the right to his share had vested in the beneficiary subject to the exercise of the powers conferred on the trustees; that the arresting creditors took the right tantum et tale as it was in him; and that therefore the trustees were not barred from executing such a deed of restriction by the arrestments that had been used.
Opinion per Lord Gordon ( contra unanimous judgment of the First Division) that a substantial provision in a deed may competently be inserted in the testing clause.
Judges:
Lord Hatherley, Lord O’Hagan, Lord Blackburn, and Lord Gordon
Citations:
[1878] UKHL 541, 15 SLR 541
Links:
Jurisdiction:
Scotland
Trusts
Updated: 08 October 2022; Ref: scu.646305