Scott's Trustees v De Moyse-Bucknall's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 04 November 1977 |
| Date | 04 November 1977 |
| Docket Number | No. 5 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
SuccessionVestingVesting subject to defeasanceInitial gift of fee with trust purposes added theretoWhether initial gift of fee conferred.
By his trust disposition and settlement a testator provided an alimentary liferent in the residue of his estate in favour of his widow. By purpose tenth of his trust disposition and settlement he directed his trustees, upon the determination of the liferent, "to divide the whole residue among my whole children jointly per stirpes with the issue of such of my children as may have predeceased equally among them share and share alike." Sons were to receive payment at the age of 25, and shares falling to daughters were to be held for them in alimentary liferent and their issue in fee. If a child died before the expiry of the liferent and before attaining the age of 25 without leaving issue his share was to be divided equallyper stirpes among the surviving children and the issue of predeceasing children. The testator further provided by purpose eleventh of his trust disposition and settlement that if his wife survived him without issue his trustees were, on her death or remarriage, to hold the residue for behoof of the children of a brother of the testator, with a destination-over in favour of their issue. The testator died in 1930. He had one child, a daughter, who died in 1973 without issue. His widow died in 1974.
Held (1) that the words "divide the whole residue among my whole children equally among them," with no distinction between sons and daughters, pointed to a gift of fee to the daughters subject to deferred payment and further trust purposes in the event of their having issue; (2) that the subsequent references to shares "falling to" daughters indicated that the testator had in mind a stirpital division among his own issue; (3) that consequently, on the proper construction of the deed as a whole, and in particular purpose tenth, there was conferred on the testator's daughter a gift of fee in the residue; (4) that, because the trust purposes engrafted on to that initial gift of fee had failed in the circumstances which occurred, that gift should take effect to the exclusion of those entitled under purpose eleventh; and (5) that in any event, because the widow did not predecease the testator without issue nor survive him without issue, purpose eleventh could not apply, the words "without issue" referring to the situation as at the testator's death.
Michael Alexander Sinclair Scott, C.B.E., and others, the trustees acting under the trust disposition and settlement of the late Harold Henry Sinclair Scott, presented, along with other parties, a special case for the opinion and judgment of the Court of Session. The case set forth:"(1) The late Harold Henry Sinclair Scott (hereinafter referred to as the testator) who resided at Burnside, Largs, and latterly at Woodcliffe, St Lawrence, Isle of Wight, died on 29th March 1930 domiciled in Scotland, leaving a trust disposition and settlement and relative codicil dated respectively 31st August 1922 and 1st January 1930, both registered in the Books of Council and Session on 25th April 1930. The said trust disposition and settlement and relative codicil, an extract of which is produced, is held to form part of this case. The testator was survived by his widow, Mrs Frances Dorothy Kirsopp or Scott, who died on 3rd May 1974, and by the only child of the marriage Frances Sinclair Scott, later Mrs Frances Sinclair Scott or de Moyse-Bucknall, who died on 27th February 1973 without issue. The said Mrs Frances Sinclair Scott or de Moyse-Bucknall left a will dated 11th July 1962 and two relative codicils dated respectively 10th March 1969 and 20th February 1973. The said Mrs Frances Dorothy Kirsopp or Scott left a will dated 9th December 1957 and three relative codicils thereto dated respectively 14th December 1959, 10th March 1969 and 15th January 1970. (2) In terms of his said trust disposition and settlement the testator, after making certain specific provisions which are not relevant to this case, provided for the distribution of the residue of his estate as follows:(Ninth) I direct my Trustees after fulfilment of the foregoing purposes to pay to my said wife but that only so long as she does not remarry the full annual income or interest of the residue of my said means and estate (subject to diminution from time to time as aftermentioned) for her liferent alimentary use and behoof only, she providing for the education and maintenance of our child or children out of the same until they respectively attain twenty-five years of age and upon the attainment of said age of twenty-five years whether before or after my death each such child or children shall be entitled to receive out of the income of my estate for his or her liferent alimentary use and behoof allenarly during the lifetime of my said wife the sum of Seven hundred and fifty pounds Sterling per annum or such less sum as will together with any independent income accruing to such child or children, be sufficient to produce the said amount of Seven hundred and fifty pounds per annum complete and in that event or events my said wife's income out of the income or interest of the residue of my means and estate shall be correspondingly reduced; Declaring also as it is hereby expressly provided and declared that in the event of my wife entering into a second marriage her said liferent alimentary interest in the residue of my estate shall thereupon cease and determine, and her interest in my estate in that event shall be restricted to an alimentary annuity of five hundred pounds sterling (to provide for which annuity my Trustees shall if in their discretion they consider it advisable to do so, set aside such portion of the residue of my estate as they shall consider proper and sufficient) payable along with and in addition to the provisions in her favour contained in the said Deed of Provision executed by me dated and registered as aforesaid (Tenth) I direct and appoint my Trustees, upon the determination of the liferent hereinbefore conceived in favour of my said wife by her death or remarriage respectively and after fulfilment of the whole other provisions of this Settlement to divide the whole residue of my said means and estate, which shall in these respective events be thereupon set free from the said liferent provisions, including all accumulations of Revenue among my whole children jointlyper stirpes with the issue of such of my...
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