Howat's Trustees v Howat
| Jurisdiction | Scotland |
| Judgment Date | 24 May 1922 |
| Docket Number | No. 66. |
| Date | 24 May 1922 |
| Court | Court of Session |
Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
SuccessionVestingTerm of paymentResidue payable on attainment of majorityGift over in event of beneficiary dying before receiving payment.
Alimentary provisionAnnuityTrustDenudingAlimentary annuity payable out of residueAnnuitant acquiring right to feeWhether trustees bound to denude.
A testator directed the trustees under his trust-disposition and settlement to pay an alimentary annuity to his wife in the event of her surviving him, and, subject to payment of the annuity, to hold the residue of his estate for behoof of his son and any other children that might be born to him or the survivors equally among them or their issue per stirpes, under declaration that the residue, subject to such part of my estate being retained as may be necessary to meet the foregoing annuity, shall be payable to my children as they respectively attain majority. He further directed that, in the event of his son and any other children that might be born to him all dying before receiving payment of their shares of his estate without leaving issue, the residue should be held by his trustees and paid or conveyed to a charity which he named. The testator was survived by his widow and by his son, his only child. The son attained majority but died, unmarried, a year later, leaving a general disposition and settlement in favour of his mother, and without having received payment of any part of the residue, the whole of which the trustees had found it necessary to retain in their hands to meet the widow's annuity.
Held (1), on a construction of the trust-disposition and settlement, that the words dying before receiving payment meant dying before the term of payment, and that, as the son, by attaining majority, had survived that term, the residue of the estate had vested in him, and was, accordingly, carried to his mother by his settlement; but (2) that the trustees were bound to continue to make provision for payment of her alimentary annuity out of the residue notwithstanding her acquisition of the fee, and, therefore, that she was not entitled to require them to denude in her favour.
John Howat, ironmonger in Ayr, (hereinafter referred to as the testator) died on 25th July 1898. He left a trust-disposition and settlement, dated 11th September 1897, and registered in the Books of Council and Session on 30th July 1898, by which he conveyed to trustees the whole estate belonging to him at his death.
By the first, second, and third purposes of the trust-disposition and settlement the testator provided for payment of his debts, of certain legacies, and of a sum for mournings and interim aliment to his widow. He further provided In the fourth place, should I be survived by my wife, the said Rachael Bonpain or Howat, I direct and appoint my trustees to pay to her an annuity of 150, terminable as aftermentioned, for the maintenance in comfort of herself and my child, Douglas Eusebe Howat, and any other children that may be born of our marriage, payable said annuity in advance at two terms in the year, Whitsunday and Martinmas by equal portions, beginning the first term's payment at the first term of Whitsunday or Martinmas after my death for the half-year succeeding, and which annuity shall be for her alimentary use allenarly, unaftectable by her debts or deeds, and unattachable by the diligence of her creditors, Declaring that should my said wife enter into a second marriage, the said annuity shall thereupon cease and determine. In the fifth place, subject to payment of the foresaid annuity, I direct and appoint my trustees to hold the whole residue of my means and estate, heritable and moveable, for behoof of my child, the said Douglas Eusebe Howat, and any other children that may be born to me or the survivors equally among them or their issue, per stirpes, and which residue, subject to such part of my estate being retained as may be necessary to meet the foresaid annuity shall be payable to my children as they respectively attain majority, with power to my trustees to pay or apply the whole or part of the income of my estate towards the maintenance, education, and upbringing of my children in such way as to them shall seem most expedient, and also to make advances to any of them out of the capital of my estate for such purposes as my trustees may approve of; and in the event of my child, the said Douglas Eusebe Howat, and any other children that may be born to me all dying before receiving payment of their shares of my estate without leaving issue, I direct and appoint my trustees to hold the said residue and pay or convey the same, failing my giving any other directions by any codicil hereto or separate writing, to the Ayrshire Branch of the Society for the Prevention of Cruelty to Children.
The testator was survived by his widow, Mrs Rachel Bonpain or Howat, and by his only child, Douglas Eusebe Howat, who attained majority on...
To continue reading
Request your trial
-
Stephen's Trustees v Stephen's Trustees
...17 R. 761. See also M'Elmail v. Lundie's Trustees, (1888) 16 R. 47, Lord President Inglis at p. 55; and Howat's Trustees v. Hawat, 1922 S. C. 506, Lord President Clyde at p. 510. The clause in the present case is remarkably explicit in its terms. But Andrew's testamentary trustees, and also......
-
Anderson's Trustees
...by the Court. The Court has declined in two cases (Eliott's Trustee v. EliottUNK, (1894) 21 R. 975, andHowat's Trustees v. Howat, 1922 S. C. 506) to allow the trust to be terminated at the request of the fiar, who was also an alimentary liferenter, by the funds being handed over to him, on ......
-
Branford's Trustees v Powell
...(1871) 9 Macph. 728; Turner's Trustees v. Fernie, 1908 S. C. 883; Brown's Trustees v. Thom, 1916 S. C. 32. Howat's Trustees v. Howat, 1922 S. C. 506, was also referred 2 (1903) 6 F. 26. 3 Turner's Trustees v. Fernie, 1908 S. C. 883, Lord President Dunedin, at p. 886; Brown's Trustees v. Tho......
-
Burn-Murdoch's Trustees v Tinney
...answered the question of law in the affirmative. 1 Stewart, Law of Diligence, p. 93. 2 (1861) 23 D. 705. 3 Howat's Trustees v. Howat, 1922 S. C. 506. 4 M'Lean's Trustees V. M'Lean, (1878) 5 R. 679; Menzies v. MurrayUNK, (1875) 2 R. 507. 5 Murray's Trustees, (1900) 8 S. L. T. 281. 6 Fraser, ......