Freeborn's Trustees v Bennett
| Jurisdiction | Scotland |
| Judgment Date | 24 July 1940 |
| Date | 24 July 1940 |
| Docket Number | No. 46. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
VestingDestination-overDirection "to hold for" son "and to pay or convey" to him on his attaining age of twenty-fiveDestination-over to daughters "failing him without leaving lawful children"Son dying at age of twenty-three without leaving lawful childrenWhether residue vested in son a morte testatoris.
A testator directed his trustees with regard to the residue of his estate "to hold the same for the use and behoof of my said son
James and to pay or convey the same to him upon his attaining the age of twenty-five years complete and failing him without leaving lawful children then to hold pay or convey the same for and to the use and behoof of my said daughters equally among them and their respective children."The testator was survived by his son, who died unmarried at the age of twenty-three, and by his daughters.
Held (diss. the Lord President) that the residue clause could not be construed as conferring an initial gift of the fee of the residue upon the son with a destination-over applicable only in case of the failure of the son and his children during the lifetime of the testator, but that it fell to be read as a single clause conditioning the gift to the son, and that, accordingly, the son's right being contingent upon his attaining the age of twenty-five or leaving children, he had not acquired a vested right in the residue at the time of his death.
James Freeborn died on 27th October 1875 leaving a trust-disposition and settlement dated 14th August 1867. By it the testator provided an annuity for his wife, and also made provisions for his daughters, and by the last purpose he directed his trustees with regard to the whole residue and remainder of his means and estate "to hold the same for the use and behoof of my said son James and to pay or convey the same to him upon his attaining the age of twenty-five years complete and failing him without leaving lawful children then to hold pay or convey the same for and to the use and behoof of my said daughters equally among them and their respective children in the same manner and subject to the like conditions under which the provisions in their own favours in the third purpose of this settlement are directed to be held paid or conveyed, declaring that my said trustees shall not be bound to retain or set aside any part of the said residue as a capital fund to provide for the payment of the foresaid annuity to my wife unless she shall desire the sum requisite therefor to be so retained but may with her consent pay or convey over the said whole residue to my said son James, providing always that he shall make proper provision and security to my wife's satisfaction for the regular payment of her said annuity; Declaring further that my trustees may if they think proper make advances from time to time to my said son of such amounts as they may judge expedient to account of his share of my estate for the purpose of establishing him in business; And also if thought proper, to advance to each of my daughters for providing an outfit on their being married the sum of one hundred pounds which shall be a deduction from the capital of the foresaid provisions in favour of them and their children." The trust-disposition and settlement contained a declaration that the provisions therein in favour of his wife and children were to be in full satisfaction of their legal rights.
The testator was survived by his wife, three daughters, and the son, James Joseph Freeborn, who died on 18th November 1876, aged twenty-three years, unmarried and intestate. The widow died on 17th March 1883, survived by her three daughters.
A question having arisen as to whether the testator's son had, or had not, at the date of his death, a vested right in the residue of the testator's estate under the last purpose of the trust-disposition and settlement, a special case was presented for the opinion and judgment of the Court.
The first parties, who were the trustees acting under the testator's trust-disposition and settlement, presented no contentions.
The second party, who was one of the testator's daughters, Mrs Annie Freeborn or Bennett, contended that the son acquired a vested right in the residue of the trust estate a morte testatoris,his right not being made conditional upon his...
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