Hope Johnstone v Sinclair's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 01 November 1904 |
| Date | 01 November 1904 |
| Docket Number | No. 6. |
| Court | Court of Session |
Lord Pearson, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
SuccessionLegacy to a classDirection to holdPeriod of distribution.
A testator directed his trustees to hold a fund in trust for all the children of A who, being sons, should attain twenty-one, or being daughters, should attain that age or marry. During A's lifetime, certain of his children who had attained majority claimed payment of their shares. Held that as the class of beneficiaries could not be ascertained till after the death of A, no child was entitled to payment of a share before that event.
Andrews v. PartingtonENR, 1791, 3 Brown Ch. Cas. 401, commented on.
Miss Olivia Sophia Sinclair, residing at Thurso Castle, died on 24th January 1894, leaving a last will and testament dated 20th May 1892, with codicil, dated 11th May 1893, both registered in the Sheriff Court Books of Caithness on 6th February 1894. Miss Sinclair by her will bequeathed to her trustees and executors (Charles Cecil Gordon Hope Johnstone, William James Hope Johnstone, and George Felix Standish Sinclair) the sum of 6000 upon trust that they shall invest the same in their or his names or name and shall pay one-third part of the annual income of the said sum of 6000, or the investments for the time being representing the same to the said Emelie Johnstone, the wife of my nephew William James Hope Johnstone, during her life, or until she shall marry again. And I declare that, subject and without prejudice to the trust in favour of the said Emelie Johnstone, lastly hereinbefore declared and contained, my trustees and trustee shall hold the capital and income of the said trust premises in trust for all the children or any the child of the said William James Hope Johnstone, who being sons or a son shall attain the age of twenty-one years, or being daughters or a daughter shall attain that age, or marry under that age, and if more than one, in equal shares. Provided always, and I declare that my trustees or trustee may at any time or times raise any part or parts not exceeding in the whole one-half of the then expectant or presumptive or vested share of any child of the said William James Hope Johnstone under the trusts of this my will, and pay or apply the same for his or her advancement or benefit as my trustees or trustee shall think fit, but so that no such part or parts shall be raised and applied as aforesaid during the existence of any prior interest or interests therein under this my willwithout the consent in writing of the person or personshaving such prior interest or interests.
The codicil contained the following declaration:I declare that my said trustees or trustee shall hold my said residuary estate upon the trusts following(that is to say) as to another equal third part or share thereof, upon the like trusts and with and subject to the like powers, provisoes, and declarations in all respects, for the benefit of Emelie Johnstone, the wife of my said nephew William James Hope Johnstone and the issue of the said William James Hope Johnstone as are in my said will declared and contained in their favour concerning the sum of 6000 and the investments for the time being representing the same.
On 12th March 1903 William James Hope Johnstone and his wife, Mrs Emelie Johnstone were both alive, and had six children, three of whom had attained majority, and three of whom were still in minority.
On 12th March 1903 the three children who had attained majority (Adelaide Olivia Hope Johnstone, George Granville Hope Johnstone, and Wentworth Francis Hope Johnstone), brought the present action against (1) the trustees and executors under Miss Sinclair's will; (2) the three minor children of William James Hope Johnstone; and (3) the said William James Hope Johnstone as their curator-in-law. The summons concluded, inter alia, for declarator that under Miss Sinclair's will and codicil there was conferred on, and became vested in and payable to each of the pursuers at the dates of their respectively attaining majority, but subject always as hereinafter set forth, to the liferent of their mother, Emelie Johnstone, wife of the said William James Hope Johnstone, at least one-sixth share of the sum of 6000, and one-sixth share of one-third of the residue of the estate of the said Miss Olivia Sophia Sinclair. There was also a conclusion against the trustees and executors for payment to the pursuers of the shares claimed by them.
Defences were lodged by Miss Sinclair's trustees.
The pursuer pleaded, inter alia;(2) In respect that a right to the testamentary provision in their favour under Miss Sinclair's will and codicil has vested in the pursuers, the defenders, the said Miss Sinclair's trustees and executors, are bound to denude and make payment thereof to the pursuers, subject to the retention of a sum sufficient to satisfy the liferent of the liferentrix.
The defenders pleaded, inter alia;(2) The pursuers, on a sound construction of said last will and testament and codicil, not being entitled to the shares of the trust-estate claimed by them, decree of absolvitor should...
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