Livingston's Trustees v Livingston's Trustees
| Jurisdiction | England & Wales |
| Judge | Lord Thankerton,Lord Russell of Killowen,Lord Macmillan,Lord Wright,Lord Romer,or |
| Judgment Date | 30 March 1939 |
| Judgment citation (vLex) | [1939] UKHL J0330-2 |
| Date | 30 March 1939 |
| Court | House of Lords |
| Docket Number | No. 3. |
[1939] UKHL J0330-2
House of Lords
Lord Thankerton
Lord Russell of Killowen
Lord Macmillan
Lord Wright
Lord Romer
After hearing Counsel, as well on Friday the 24th, as on Monday the 27th, days of February last, upon the Petition and Appeal of Henry Halcro Fyfe, Writer, and Charles Hector MacLean, Bachelor of Law, both of 21 West George Street, Glasgow, the Trustees acting under the Settlement of the deceased Miss Flora Livingston of Kingsburgh, West Kilbride, dated 13th and registered in the Books of Council and Session on 23d, both days of December 1936, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 20th of May 1938, except so far as regards the words "Find the Pursuers and Real Raisers entitled to expenses of the motion for review taxed as between Solicitor and Client out of the fund in medio, and Find all the Claimants entitled to judicial expenses of said motion out of the fund in medio: Remit the respective Accounts when lodged, to the Auditor to tax and to report to the Lord Ordinary, to whom grant power to decern for the taxed amount thereof and to dispose of all remaining questions of expenses." might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of (1) Miss Mary Emily Irwin, Executor Nominate ad non executa of the deceased Mrs. Mary Frances Livingston or Robertson, conform to Confirmation ad non executa by the Sheriff of the Lothians and Peebles at Edinburgh, dated 8th July 1935; (2) the said Miss Mary Emily Irwin, William MacLean and Hugh MacDonald Todd, the accepting and assumed Trustees acting under the Will of the deceased Miss Emily Nina Livingston, dated 11th May 1935, and relative Deed of Assumption, dated 5th and 8th July 1935, both registered in the Books of Council and Session on 3d September 1935; (3) John Macintosh Norman MacLeod, Judicial Factor on the estate of the deceased Ranald John MacDonald Livingston; and (4) the said William MacLean, Hugh MacDonald Todd and Henry Halcro Fyfe, the assumed Trustees acting under the Trust Disposition and Settlement and Codicil of the deceased Ronald Livingston, dated respectively 4th September 1868 and 26th December 1870, and registered in the Books of Council and Session 20th October 1871, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 20th day of May 1938, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Interlocutor of the Lord Ordinary in Scotland (Lord Russell) of the 8th day of January 1938, thereby Recalled, be, and the same is hereby, Restored: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Costs of all parties in respect of the Appeal to this House be paid out of the fund in medio, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the privilege of considering the opinion of my noble and learned friend Lord Russell of Killowen, and I find myself in complete agreement with it; I desire to add only a few observations.
On the Appellants' first contention, that Flora, as the survivor of the residuary legatees, was entitled to the fund, it is clear that this point did not arise in the circumstances of the previous special case in 1928; the question then considered was whether the word "other" in the final destination-over implied the qualification of survivance, and it was held that it did. It did not affect the import of that word as requiring that the survivor must be someone other than the daughter whose death occasioned the succession, and the opinion of Lord Blackburn, as my noble and learned friend states, makes this certain.
On the Appellants' alternative contention, it is settled that the principle of construction which is known as the rule in Lassence v. Tierney applies in Scotland, ( Donaldson's Trustees, 1916 S.C. (H.L.) 55) and the correct exposition of the rule is found in Lord Davey's speech in Hancock v. Watson, (1902) A.C. 14, at p. 22. Further, as stated by my noble and learned friend, it is settled that every destination-over, whether to issue or strangers, may be equally regarded as "trusts engrafted" on an original absolute gift, as is shown by the case of Hancock v. Watson, and the case of Fraser v. Eraser's Trustees, (1883) 11 R. 196. In the latter case Lord Shand stated, at p. 201, "In the deed the testator declares that these shall be provisions primarily in favour of his daughters and their children, and that on their failure they were to revert to the surviving brothers and sister. In such a case I think the Court should lean to the construction of the deed which would give effect to that intention, and not to the construction which would cause a lapse. The contention of the proprietor of this estate would lead to the anomaly that although either sister could succeed to the provision which belonged to the other, yet that neither could in any event deal mortis causa with her own provision." This statement not only illustrates the reasoning which led to the rule in Lassence v. Tierney, but is very pertinent to the present case. On the question of construction here I agree entirely with the reasoning of my noble and learned friend, and I will only add that I find myself unable to agree with the construction of the sixteenth purpose expressed by Lord President Clyde in the 1928 case and adopted by Lord President Normand in the present case, which would limit its application, in regard to the provisions in favour of daughters, to their liferent interests. I agree with my noble and learned friend that this purpose is clearly dealing with the capital of these shares.
I have also had the privilege of considering the opinion about to be delivered by my noble and learned friend Lord Romer, and I desire to express my concurrence in it. I agree with the order proposed by my noble and learned friend Lord Russell of Killowen.
My Lords,
The relevant facts which have led to this appeal are as follows:—
Ronald Livingstone of Drimsynie made a trust disposition and settlement (which I will refer to as the will) dated the 4th September, 1868, and died in the year 1871. He left him surviving his widow, and five children, viz., two sons Ronald and Alastair, and three daughters, Mary, Emily and Flora.
By the will, after providing for certain legacies and annuities, including an annuity for his widow, the testator directed his trustees to pay the sum of £20,000 to Ronald on his attaining the age of 24 years. The 13th, 14th, 15th and 16th purposes of the will were framed in these terms:—
"THIRTEENTH, The whole residue and remainder of my means and estate, heritable and moveable, real and personal, and accumulations thereon and lapsed provisions, annuities and legacies if any shall be divided equally per stirpes among my whole children (other than the said Ronald John Macdonald Livingston) and the families of such of my children as shall have died leaving lawful issue, and I direct the said division to take place on the eldest of said residuary legatees attaining majority or if a daughter being married before majority; and from and after said period of division the shares of each of my children shall be severally charged with the allowance at the rate of One hundred and fifty pounds per annum paid to my said wife in respect of each such child as above written and with any other charges and expenses that may be incurred by my Trustees on his or her behalf: FOURTEENTH, My Trustees shall in their option pay over to each of my sons, if any, other than the said Ronald John Macdonald Livingston, his share of residue and accumulations upon his attaining majority or retain the same until he attain the age of twenty-four years complete and then pay it over; and in the latter event my Trustees shall periodically as and when the same shall become due pay over to each such son the income and revenue of his share of my estate accruing since his majority: FIFTEENTH, My Trustees shall hold administer and manage the share or shares of my estate original and accruing to which each or any daughter of mine shall become entitled under these presents, and shall pay over the yearly income and revenue thereof as and when the same shall become due and not by way of anticipation into the proper hands of each such daughter to be enjoyed by her as an inalienable personal alimentary provision free from the jus mariti right of administration or other control whatsoever of any husband she may marry and not affectable by her own or such husband's debts, deeds or obligations, or the attachments, diligence or execution of her or his creditors, the receipts of each such daughter alone without any consent whatever being sufficient discharges to my Trustees for said income and upon the death of each such daughter my Trustees shall retain such share or shares for behoof of the lawful issue of such daughter, in such manner as she shall by any Deed or Will appoint and failing such appointment, then for behoof of such issue equally per stirpes, and failing issue, then for behoof of my own other...
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