Trustees of the Gwendolen Beatrice Thomson Trust, Petitioners
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1963 |
| Date | 20 March 1963 |
| Docket Number | No. 16. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord President
SuccessionConditio si institutus sine liberis decesseritWhether applicable in inter vivos deedDestination.
TrustVariation"Person having, directly or indirectly, an interest"Conditio si institutus sine liberis decesseritTrusts (Scotland) Act, 1961 (9 and 10 Eliz. II, cap. 57), sec. 1.
The Trusts (Scotland) Act, 1961, by sec. 1 (1), provides, inter alia, that the Court may approve on behalf of beneficiaries incapable of consenting by reason of nonage or other incapacity any arrangement varying or revoking trust purposes, and, by sec. 1 (6), that "beneficiary" in relation to a trust, includes any person having, directly or indirectly, an interest, whether vested or contingent, under the trust.
By an inter vivos deed a father conveyed funds to trustees to be held by them for behoof of a named daughter in liferent. He directed that on her death, survived by a child or children, the fee should be conveyed to her child or children in such sums or portions as she might direct, or, failing direction, in equal portions to such children on the youngest of them attaining twenty-five years of age. He further provided: "and I empower the Trustees pending payment of the capital to apply the income of the respective shares falling to such issue for the maintenance and education of such issue." In the event of the daughter leaving no children there was a destination-over to her brothers or their issue. In an application to vary the trust it was contended that the daughter's grandchildren were contingent beneficiaries by virtue of the conditio si institutus sine liberis decesserit, and that approval on their behalf of the arrangement proposed in the petition was necessary.
Held that the conditio did not apply in the case of aninter vivos trust, that the truster's grandchildren, therefore, were not beneficiaries, and that no approval of the arrangement on their behalf was necessary.
Mrs Gwendolen Beatrice Thomson or Spalding and Others, the trustees of the Gwendolen Beatrice Thomson Trust, presented a petition to the Court for approval and authorisation of an arrangement under section 1 of the Trusts (Scotland) Act, 1961.1
The petition set forth, inter alia:"(1) That byinter vivos declaration of trust, dated 20th, and registered in the Books of Council and Session 31st, both days of January 1922 (hereinafter referred to as the deed), William Thomson, sometime shipowner and newspaper proprietor, who resided at Northwood, Broughty Ferry, and who died on 6th January 1924, domiciled in Scotland (hereinafter referred to as the truster), appointed trustees to administer the Gwendolen Beatrice Thomson Trust (hereinafter referred to as the trust) in accordance with the declarations therein made. An extract of the said declaration of trust is produced. The truster was the father of the first petitioner. The trustees at present acting under the said declaration of trust are the first petitioner, Captain Thomas Spalding, R.N. (retired), husband of and residing with the first petitioner, and the second, third and fourth petitioners. They are hereinafter referred to as the trustees. (2) The first three declarations of the deed deal with administrative matters, powers of the trustees and the like. The fourth and fifth declarations provide:Fourth. After payment of the expenses of management (should there be any such expenses) and payment of any tax or taxes that may be levied, and to which the annual interest may be subject, the net annual income of the trust shall be paid to my daughter Miss Gwendolen Beatrice Thomson as an individual during all the days of her life, with this exception, that I direct that the liferent provision herein contained shall cease with the last half-yearly or termly payment of interest received by the liferentrix before her death, and I expressly stipulate that no apportionment shall take place in the trust income. Fifth. On the death of the said Miss Gwendolen Beatrice Thomson I direct the trustees to dispose of the estate as follows,videlicet:(1) If she shall be survived by a child or children, I direct the trustees to pay and make over the trust estate absolutely in fee to such child, or if there be more than one child, to such children in such sums or portions as my said daughter may direct, or, failing any
direction by her, in equal sums or portions to such children on the youngest of them attaining twenty-five years of age, and I empower the trustees, pending payment of the capital, to apply the income of the respective shares falling to such issue, or such part thereof as the trustees may consider proper, for the maintenance and education of such issue, or otherwise for their benefit, and to set aside and accumulate such remaining part of the income as the trustees may think proper, until such issue respectively attain twenty-one years of age, and from and after the dates on which such issue respectively attain twenty-one years of age until the dates on which they respectively attain twenty-five years of age, to pay over to such issue the whole income of their respective shares at such half yearly or quarterly dates as the trustees may determine; and in event of my said daughter leaving no children the trustees shall pay and make over the whole of the trust estate absolutely in fee to her brothers or their issue, share and share alike, in equal sums or portions among her brothers, the issue of predeceasing brothers taking their parents' share, and the capital to be paid to such issue on the youngest of such issue attaining twenty-five years of age, and I declare that pending payment of capital the trustees shall apply the income of the respective shares falling to such issue, or such part thereof as the trustees consider proper, for the maintenance and education of such issue, or otherwise for their benefit, and to set aside and accumulate such remaining part of the income as the trustees may think proper, until such issue respectively attain twenty-one years of age, and from and after the dates on which such issue respectively attain twenty-one years of age until the dates on which they respectively attain twenty-five years of age to pay over to such issue the whole income of their respective shares at such half-yearly or quarterly dates as the trustees may determine. (3) The first petitioner was born on 1st March 1894 and is accordingly of an age when she will have no further children. The second, third and fourth petitioners are the whole children ever born to the first petitioner. They were born respectively on 1st August 1928, 28th July 1930 and 11th May 1934. (5) Unless the declarations of the deed are varied, the fee of the trust fund will pass on the death of the first petitioner to the second, third and fourth petitioners and the survivors of them in such proportions as the first petitioner may direct and failing such direction, equally. In the event of the first petitioner dying predeceased by the second, third and fourth petitioners, the fee of the trust fund will pass to the brothers of the first petitioner and their issue per stirpes. (8) The only issue of the second, third and fourth petitioners at present in life are the two children of the third petitioner, videlicet:Leonie Amanda Spalding, born on 20th July 1959, and Catriona Beatrice Andree Spalding, born on 5th September 1960. The third petitioner is domiciled in England and is their guardian. The petitioners are advised that neither these persons nor any other issue of the second, third or fourth petitioners have any interest in the trust fund. (12) The first, second, third and fourth petitioners approve of and assent to the said arrangement, but
the trustees are advised that they would not be in safety to give effect to it without the aid of the Court because of the contingent interests of the issue of the first petitioner's brothers, such issue including persons who by reason of nonage are incapable of assenting and persons as yet unborn. The purpose of this application is to seek the approval of your Lordships to the said arrangement on behalf of unborn beneficiaries and beneficiaries who by reason of nonage are incapable of assenting."
The curator ad litem to Leonie Amanda Spalding and others lodged answers to the petition, which were, so far as is material, in the following terms:(Ans. 1) "Admitted." (Ans. 2) "Admitted under...
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