Donaldson's Trustees v Donaldson
| Jurisdiction | England & Wales |
| Judgment Date | 29 October 1915 |
| Date | 29 October 1915 |
| Docket Number | No. 4. |
| Court | House of Lords |
Ld. Atkinson, Lord Shaw of Dunfermline, Ld. Parker of Waddington, Ld. Wrenbury.
SuccessionVestingFee and LiferentGift of capital to sonSubsequent direction to hold part of capital for son in liferent and issue in feeDeath of son without issue.
A testator directed his trustees to hold, apply, pay, and convey the residue of his estate for behoof of his children and their issue, as follows. He then directed that a certain sum should be set aside out of the residue for each of his daughters in liferent and their issue in fee, whom failing for the testator's surviving children; and further directed his trustees to hold and apply the remainder of the residue for behoof of his sons and their issue, and declared that they should hold one share for each son who survived him. The capital of the shares of sons was declared to be payable to them at the age of twenty-five, and the shares were declared to vest absolutely in them at the date of payment. By a subsequent clause the testator declared that the shares of sons who attained twenty-five shall be payable and shall be held as follows:(Primo) My trustees shall pay over from time to time such portion thereof not exceeding two-thirds of the capital thereof as they may think proper; and (Secundo) they shall hold the remaining one-third and such further portion as they may finally resolve to retain in trust for behoof of my said sons respectively in liferent for their liferent alimentary use allenarly and for behoof of the children of their respective bodies in fee. There was no express provision as to the disposal of the portion of the sons' shares held for them in liferent and their children in fee in the event of a son having no children, but there was a clause directing that such portion of the residue of my estate as may not be required for the purposes hereinbefore or aftermentioned should be held for the surviving children of the testator and the issue of deceased children.
One of the testator's sons after attaining the age of twenty-five died without issue. The trustees had paid to him two-thirds of the capital of his share. In a competition as to the one-third of his share retained by the trustees,
Held (rev. judgment of the Second Division), applying the principles laid down in Tweeddale's Trustees v. Tweeddale, (1905) & F. 264, and Hancock v. WatsonELR, [1902] A. C. 14, that the son had a vested right in the fee of the whole of his share, including the one-third part retained by the trustees.
(In the Court of Session 10th December 1914.)
Robert Donaldson died on 17th November 1885, leaving a trust-disposition and settlement dated 25th March 1885.
The trust-disposition and settlement provided, inter alia;
In the sixth place, I direct my Trustees to hold apply pay and convey the residue of my means and estate and the income thereof for behoof of my children and their issue who survive me and for issue per stirpes of any daughter who has predeceased me as follows vizt.
(First) I direct them to set aside for each of my daughters the sum of Fifty thousand pounds but under deduction of such capital sum as I may have settled or undertaken to settle in her Marriage Settlement or Contract or in any deed or document in connection with her marriage and I direct that daughters' provisions shall be held by my Trustees, or in their option, the share of any married daughter shall be paid over to the Trustees acting under her Marriage Settlement or Contract to be held by them for behoof of my daughters respectively in liferent, for their respective liferent alimentary use allenarly and for behoof of the issue of their respective bodies in fee, and that in such proportions under such restrictions (including a restriction to a liferent) at such time or times and upon such terms and conditions as my said daughters may respectively appoint by any writing under her hand whether testamentary or otherwise and failing such appointment then equally between her children who survive her jointly with the issue of any child or children of her who may have predeceased her leaving issue per stirpes share and share alike and I further provide that failing a child or children or the issue of a child or children the shares of daughters and the profits and produce thereof so far as the same has not been paid or advanced in virtue of the powers hereinbefore and after conferred shall be held by my Trustees for behoof of my surviving sons and daughters and the issue per stirpes of any son or daughter who may have predeceased whether before or after me leaving issue share and share alike and that on the same Trusts and subject to the same conditions as if the same had formed part of their original shares of my estate.
(Second) I direct my Trustees to hold and apply the remainder of the residue of my estate for behoof of my son or sons and issue of sons as aftermentioned that is to say first I provide and declare that they shall hold one share for behoof of each son who survives me and one share equal to what their father would have been entitled to had he survived for behoof of the issue per stirpes of any son who has predeceased me and that equally between them share and share alike Further if there be only one son or the issue of only one son who survives me I direct that the whole of said remainder of residue shall be held for said surviving son or issue of one son but subject to payment therefrom by my trustees of the sum of Twenty-five thousand ponnds further to be set aside and held for each of my daughters surviving me and the issue per stirpes of any daughter who has predeceased me and that on the same Trusts and subject to the same conditions and powers as if the same had formed part of the sums of Fifty thousand pounds above mentioned in the sixth place and I provide that there shall be given credit (as between the beneficiaries under this purpose of my will) for any capital paid or sums settled or agreed to be paid or settled by me by the Marriage
Settlement or contract of any son or any deed or document in connection with the marriage of a son; SecondI provide and declare that the capital of the shares of sons and any profits or produce thereof after my death so far as not paid over to them in virtue of the powers herein conferred shall not be payable till they attain twenty-five years of age and that the shares of grandchildren and any profits and produce thereof not paid over to them in virtue of the powers herein conferred shall not be payable to them till they attain twenty-one years of age and shall vest absolutely in them respectively as at the term of payment but I provide and declare that in the event of any son predeceasing me leaving issue or having survived me dying before the said term of payment leaving issue or of any grandchild dying before attaining twenty-one years of age leaving issue such issue shall be entitled equally amongst them to the share to which their parent would have been entitled if he had survived and I further provide that the income of sons' and grandchildren's shares accruing before said period of payment may be paid over to them by my Trustees in whole or in part but shall only be payable to such an extent as my Trustees think proper; Third I direct that the shares of my sons who have attained the age of twenty-five at my death or may thereafter attain that age shall be payable and shall be held as follows (Primo) My Trustees shall pay over from time to time such portion thereof not exceeding two-thirds of the capital thereof as they may think proper and (Secundo) They shall hold the remaining one-third and such further portion as they may finally resolve to retain in trust for behoof of my said sons respectively in liferent for their liferent alimentary use allenarly, and for behoof of the children of their respective bodies in fee, and that in such proportions under such restrictions (including a restriction to a liferent) at such time or times and upon such terms and conditions as my said sons may respectively appoint by any writing under his hand whether testamentary or otherwise and failing such appointment then equally among his children surviving him jointly with the issue of such of them as may have predeceased leaving issue per stirpes share and share alike payable the profits and produce of any such sons' children's shares to them from time to time as it falls due and that in whole or in part as my Trustees think proper but only to such an extent as my Trustees consider expedient and payable the fee of any such son's children's shares and any profits and produce thereof not paid over on such son's children respectively attaining twenty-one years of age.
In the seventh place I direct that such portion of the residue of my estate as may not be required for the purposes hereinbefore or aftermentioned shall be held by my Trustees for behoof of and shall be divided equally between and among my whole children sons and daughters surviving jointly with the issue of any son or daughter who may have deceased whether before or after me leaving issue such issue succeeding equally to the share to which their parent would have been entitled if in life and shall be held by my said Trustees on the same Trusts and be subject to the same conditions as if the same had formed part of their original shares of my estate.
[The eighth purpose dealt with possible alterations to be effected by subsequent writings.]
In the ninth place Notwithstanding anything herein contained I Provide that it Shall be competent to and in the power of any of my daughters who may die after my decease without issue but survived by a husband to bestow by deed inter vivos or mortis causa upon such husband the liferent from and after her decease till his death or second marriage of such portion of income of the share of my estate held for her as aforesaid as she may consider adequate not exceeding the liferent of one-third of such...
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