Murray's Trustee v Murray
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1919 |
| Docket Number | No. 67. |
| Date | 26 June 1919 |
| Court | Court of Session |
Lord Mackenzie, Lord Skerrington, Lord Cullen.
Succession—Vesting—Bequest to a class—Date of ascertainment—Direction to ‘hold’ fund ‘for behoof of the children of my nearest of kin if there any be’—Postnati.
A testator, after providing for two liferents of the residue of his estate, directed his trustees to ‘hold the said residue for behoof of the children of my nearest of kin if there any be.’ At the expiry of the second liferent his nearest of kin was his second son, whose eldest child was then in utero. Other children were subsequently born.
Held that, in the absence of any provision in the settlement for a continuing trust, the child in utero succeeded at his birth to the whole fund, and was entitled to immediate payment.
On 13th May 1919 a special case was presented for the opinion and judgment of the Court upon certain questions arising under the trust-disposition and settlement of James Murray, who died on 19th June 1897.
The parties to the case were Alastair Dallas, W.S., the sole acting trustee, first party; the testator's second son, James A. R. Murray, as tutor for his eldest child, Patrick J. A. R. Murray, second party;and as tutor for his other children, Anton J. R. Murray and others, third party.
By his trust-disposition and settlement the testator conveyed his whole estate to his trustees for certain purposes, the third of which was expressed in the following terms:—‘My trustees shall pay over the interest or income to be derived from the residue of my means and estate to my cousin Nina Lesingham Bailey and that annually or at such shorter times and in such sums as my trustees shall think proper and at her death my trustees shall hold the said residue for behoof of my said son John Charles Murray in liferent for his liferent use only and for behoof of his children in fee and they shall pay to him or for his behoof as they shall judge expedient (as regards which they shall be entitled to exercise the fullest discretion) the free yearly interest or revenue derived from the said residue, and that in such sums or proportions and at such times as my trustees shall judge expedient: [then followed a power to the trustees, in certain circumstances, to make advances to his said son out of capital]: and, on the death of my said son, they shall hold the fee for behoof of his children if he any have, and shall pay the same to such children, share and share alike, on their respectively attaining the age of 25 years in the case of males, and at the same age or on marriage in the case of females, and, in case he shall have no children, who shall survive the foresaid term of payment, then my trustees shall hold the said residue for behoof of the children of my nearest of kin if there any be.’
The case set forth that the testator was survived by the said Miss Nina Lesingham Bailey, and by three children, viz., John Charles Murray, James Alexander Russel Murray, and Jessie Rose Mary Murray. The liferentrix the said Nina Lesingham Bailey died on 8th November 1897. The said Jessie Rose Mary Murray died unmarried on 22nd August 1902, and the liferenter the said John Charles Murray died, also unmarried, on 8th February 1908. The only children of the testator's nearest of kin were the children of his second son the said James Alexander Russel Murray. At the date of the special case James Alexander Russel Murray had five children, viz., Patrick Jesse Alexander Russel Murray, who was born on 13th June 1908, and was accordingly in utero at the date of the death of the liferenter John Charles Murray, and four younger children. At the date of the special case James Alexander Russel Murray was forty-six years of age, and his wife was in her thirty-seventh year and was then pregnant. The case further set forth that the residue of the estate was of small amount and yielded only about £28 per annum. Since the death of the last liferenter the income had been paid to the wife of the said James Alexander Russel Murray, with his consent, for behoof of his children. As he was without adequate means to provide his children with a suitable education he had requested the trustee to pay over to him the whole, or a proportion, of the capital of the residue on behalf of his children, but the trustee declined to do so.
The following were the contentions of the parties:—
‘The first party maintains that he is bound to hold the said residue for behoof of the whole children of the said James Alexander Russel Murray, and that, even assuming that the said residue has vested in the children of the said James Alexander Russel Murray now in life, this is subject to partial...
To continue reading
Request your trial
-
Wilson's Trustees v Mackenzie
...Macph. 1050. 3 Wylie's Trustees v. Bruce, 1919 S. C. 211; Buchanan's Trustees v. BuchananSC, (1877) 4 R. 754; Murray's Trustee v. Murray, 1919 S. C. 552, Lord Mackenzie, at p. 4 16 R. 40, at p. 43. 5 4 Macq. 314. 1 16 R. (H. L.) 10. 2 9 R. 269. 3 (1837) 15 S. 1005. 4 16 R. 204, at p. 208. 1......
-
Denny's Trustees v Dumbarton Magistrates
...1922 S. C. 395, Lord Justice-Clerk Scott Dickson at p. 400. 5 Henderson on Vesting, (2nd ed.), p. 146; Murray's Trustee v. Murray, 1919 S. C. 552, Lord Skerrington at p. 6 Blair v. Duncan, 4 F. (H. L.) 1, Lord Robertson at p. 5; Turnbull's Trustees v. Lord AdvocateELR, 1918 S. C. (H. L.) 88......