Yuill's Trustees v Thomson
| Jurisdiction | Scotland |
| Judgment Date | 29 May 1902 |
| Docket Number | No. 152. |
| Date | 29 May 1902 |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear, Lord Kyllachy, Lord Kincairney, Lord Stormonth-Darling, Lord Low, Lord Pearson, Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
SuccessionTrustDirection to divide residue among children on death of liferenter, and subsequent direction to retain shares till death of another personAccumulationsThellusson Act (39 and 40 Geo. III. cap. 98), sec. 3Repugnancy.
A testator in his settlement directed his trustees, on the expiry of a liferent, to divide his estate among the children of his brothers and sisters; further, by a codicil, he directed his trustees to retain in their own hands the shares destined to the children of his sisters, and to pay to them neither the capital thereof nor the revenues (which meantime were to be accumulated) so long as their fathers should be alive.
On the expiry of the liferent, more than twenty-one years after the death of the testator, held by a majority of the whole Court (diss. Lord Young and Lord Moncreiff), that the sisters' children had an unqualified and indefeasible right of fee in their shares, and were entitled to demand immediate payment thereof, notwithstanding that their fathers were still alive.
Miller's Trustees v. MillerSC, Dec. 19, 1890, 18 R. 301, considered and followed.
ProcessCourt of seven JudgesAuthority of decisionReviewCourt of Session Act, 1868, sec. 60.
Opinions on the competency and propriety of reviewing in the whole Court a decision of a Court of seven Judges.
James Robertson Yuill died on 18th October 1870. He left no children, but was survived by his wife, Mrs Elizabeth Patillo or Yuill.
By his trust-disposition and settlement, dated 13th February 1850, he conveyed his whole means and estate to trustees, inter alia, for the following purposes, viz., to provide a liferent of the whole residue to his wife, and (subject to the event, which happened, of there being no children of his own marriage) (Sexto) to hold and apply the whole rest, residue, and remainder of my said means and estate, subject always to the liferent conceived in favour of my said spouse, for behoof of and to make over the same to and among my brothers and sisters following, viz.:Andrew Yuill, at present in Canada; Margaret Yuill or Paul, spouse of Andrew Paul, now or lately in Liverpool; Jane Yuill, presently residing in Glasgow; Alexander Yuill, presently at Sydney; and Agnes Yuill, presently residing at Dunoon; and I legate and bequeath accordingly: Declaring that in the event of the decease of any of the parties to whom provisions present or contingent are hereby conceived leaving lawful issue, such issue shall succeed to the same share to which their parent would have been entitled if in life; and in the event of the decease of such parties without leaving lawful issue, the share of such beneficiaries shall fall and accrue to the brothers and sisters or brother and sister of such parties equally, if more than one, and failing such, then such provisions shall be added to and increase the fund of division forming the residue of my estate divisible as aforesaid: Declaring also that the provision hereinbefore made in favour of my said child or children or other beneficiaries shall not be assignable or payable until such parties respectively attain majority or be married, whichever of these events may first happen, but with power to my said trustees to apply the whole or such part of the interest or annual proceeds of their provisions as to them shall seem proper for their maintenance, upbringing, and education, or otherwise for their benefit during their respective minorities: Declaring that provisions falling to females under these presents shall be exclusive of the jus mariti or right of administration of their husbands, and not affectable by the debts or deeds of such husbands or any diligence thereon: Declaring also that it shall be in the power of my said trustees, and they are hereby specially authorised in case it shall be deemed expedient, of which they shall be the sole judges, to withhold the share or shares of any of my said children or other beneficiaries appointed to be paid at majority or marriage as aforesaid, or such part as may seem proper, and to pay the same at such times and in such portions as may be considered most for the advantage of such child or children or other beneficiaries, and even to lay out the whole upon heritable or personal security, or in the purchase of property or stocks or of annuities for their behoof, and to pay the annual proceeds thereof in such portions and at such times as to my said trustees shall seem proper, and it shall be in the power of my said trustees at their discretion to apply and dispose of any part or parts of the share or shares provided or intended for my said child or children or other beneficiaries who shall be under the age of twenty-one years, for apprenticing or placing him or them in any profession, business, or employment, or for their instruction therein, or otherwise for his or her benefit or advancement in the world, notwithstanding such share or shares shall not then have become payable.
By a codicil, dated 14th August 1866, the testator directed that in case the child or children of my sister Jane Yuill or Thomson, wife of William Thomson, farmer, Shuna, and the children of my deceased sister Agnes Yuill, who was the wife of Hugh Crawford Harvie, warehouseman in Glasgow, shall become entitled to provisions under the foregoing settlement, such provisions shall be held by my trustees during the lives of the said William Thomson and Hugh Crawford Harvie respectively, invested in their own names, and the interest from time to time accruing on the provisions falling to such child or children respectively shall be added to the principal of such provisions, but neither interest nor principal shall be payable to said child or children or any of them during the lifetime of their respective fathers, the said William Thomson and Hugh Crawford Harvie, and I legate and bequeath accordingly, and in all other respects I confirm the foregoing settlement.
Mrs Jane Yuill or Thomson died in 1874 leaving one child, James Patillo Thomson, and Mrs Agnes Yuill or Harvie died in 1866 leaving two children, John and James Harvie.
The liferentrix, Mrs Yuill, died on 25th January 1899, and the fathers of James Patillo Thomson and of John and James Harvie being still alive, a question arose as to the rights of these three nephews of the testator under the settlement and codicil, to determine which this special case was brought, the parties thereto being (1) the trustees, and (2) the three nephews James Patillo Thomson and James and John HarvieJohn Harvie having been sisted as a party subsequent to the presentation of the case.
In consequence of the death of the liferentrix occurring almost twenty-one years after the death of the testator, it was stated in the case that, in respect of the operation of the Thellusson Act,1the first parties have from time to time, since the liferentrix's death, paid over to the second parties their respective shares of the income arising on the shares of residue destined to the second parties
The contentions of parties as stated in the case were these:The second parties maintain that the first parties are bound to denude of said shares in their favour, and forthwith to pay over to them respectively the capital thereof, and have called upon them to do so. The first parties are willing to pay the same but for the terms of the first codicil above narrated. They consider, however, that they are bound, in terms of the said first codicil, to retain the second parties' shares until the deaths of their respective fathers.
The questions of law for the opinion of the Court were:(1) Are the first parties bound to retain the shares falling to the second parties until the deaths of the respective fathers of the second parties? or (2) Are the second parties entitled to demand immediate payment of said shares?
On 16th July 1901 the Second Division, after hearing counsel, pronounced an interlocutor ordering minutes of debate to be boxed to the other Judges, in order that the opinion of the whole Court might be obtained upon the case, with special reference to. the decision pronounced in the case of Miller's Trustees, 19th December 1890.2
Argued for the first parties;They were bound to retain in their own hands the second parties' provisions until the death of their respective fathers. The intention of the truster, which, being lawful, and clearly expressed, must be given effect to,3 was that the shares of the second parties should have the protection of being invested in the names of the trustees; and, further, that on the death of their respective fathers, the second parties should receive provisions larger in respect of the accumulations which would have taken place than if the income had been previously paid to them. This was a good ulterior trust purpose to be served, distinguishing the present from the case of Miller's TrusteesSC,2 and, in such a case, there was no repugnancy
in keeping up the trust even although the provisions had vested.1 There might be a right of fee subject to conditions. Vesting subject to defeasance was another example. In the cases similar and subsequent to Millers TrusteesSC,2 the conflicting and seldom unanimous opinions3 shewed a reluctance to adopt the principle of that decision, and it was submitted that even if that case were not distinguishable from the present, the principle of the decision was wrong, and should not be given effect to, but rather that the views of the minority of the Judges in that decision should be followed, views which received countenance from the opinion of the Lord President, although his Lordship formed one of the majority. No doubt, where there was no reason to be discovered for postponing the period of distribution, or where there...
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