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16th November 1843.
Second Division.-(G.D.F.)
No. 10.- The Rev. THOMAS WRIGHT and OTHERS (Trustees and Executors of Simon Fraser), Claimants, V. William Fraser and Janet Fraser or Dykes, Claimants.

Testament—Succession -_ Vesting_ Assignation _ Trust -- A testalor by his settlement directed his trustees to hold the residue for the liferent use oftwa parties, and on the death oft/1e survivor “ to denude of the trust in favour qf, and to make payment qfany money in their hands, the one halro Xand the other half to Y, and the children of the present marriage between Yand the sister of the testalor." Ysurvived the testator, but predeceased the longest liver of the two lifercnlers, having executed in favour of a third party an assignation of the provision-Held, in a competition in regard to the second halfaf the residue, that the children named in the provision were entitled thereto, to the exclusion of the parly who had obtained the special assignalion thereof from Y.

The late Miss Marjory Douglas, by her settlement dated in 1794, conveyed her heritable and moveable property to her mother Mrs Janet Douglas, her brother John, Simon Fraser of Ford her brother-in-law, and others, as trustees for certain purposes, and, inter alia, it was provided that they " shall pay the free annual produce of the remainder of my estate and effects to the said Mrs Janet Douglas, my mother, during all the days of her lifetime. in the third place, upon the death of my said mother, that they shall apply the said yearly produce to and for the use and benefit of William Douglas, my eldest brother, during all the days of his life, in case of his surviving his and my said mother; which lifcrent in favour of my said brother l declare is, and shall be exclusive of his acts and deeds, and noways afi'ectable by the diligence of any of his creditors; and I declare that the word or writ of my said trustees, and their foresnids, shall be a suificient voucher for any sums which may be expended for his use or benefit. And lastly, upon the death of the longest liver of my saids mother anti brother, to denude of the said trust in favour of, and to make payment of any money in their hands, the one-half to my said brother John, and the other halfto the said Simon Fraser, and the children of the present marriage between him and my sister."
The two liferenters, and the other parties called nominatim to the succession, survived the testatrix. One of the liferenters, Mrs Douglas, died in 1804. The surviving one, William Douglas, died on 18th June 1839, and he survived Simon Fraser, who died in 18l9.
Simon Fraser had executed in 1797 an assignation in favour of his eldest son Simon (the second), and his heirs-male, whom failing, a series of other heirs (whom he also appointed executors), of the whole heritable and moveable property that shodld belong to him at the time of his death, under burden of debts, an annuity to his widow, and provisions contracted to be paid to his younger children in terms of his marriagecontract, which were declared 'to be in full of legitim. At the'pcriod of his death he Was survived by his widow, the sister of the testatrix, and by four childrenSimon (the second), William, Lewis and Janet. Simon (the second) made up titles to, and implemented the above provisions undertaken by his father, and the provisions were discharged accordingly by the younger children. He also predeceased the last lil'erenter (William Douglas), and died in 1838, leaving a trust-deed, by which be conveyed his whole heritable and moveable estate to certain trustees, the present claimants, whom he also appointed executors.
After his death a competition took place for the half of the residue destined by the last provision of the trust of Miss Marjory Douglas falling within the clause, “ and the other half to the said Simon Fraser and the children of the present marriage between him and my sister.” In the first place, it was claimed by the trustees and executors of Simon the second, upon the ground
That Simon the first was, in terms of the settlement, vested as fiar in the one half; that he had validly conveyed the same to his son Simon the second; and that the latter had equally competently conveyed it to his trustees.
On the other hand, it was claimed exclusively by a brother and sister of Simon the second, the only surviving children of the marriage between Simon the first and the sister of the testatrix ; and they pleaded, that the right to the residue of the half did not vest until the death of the last liferenter; and as the claimants were the only children of Simon the elder by his marriage with the truster’s sister, and alive at the death of the last liferenter, they were consequently entitled, equally between them, to the half, preferably and to the exclusion of any other competitor.

The Lord Ordinary pronounced the following interlocutor:
“ 20th May lS43._The Lord Ordinary having heard parties‘ procurators and made avizandum, and having since considered the closed record, and having especial regard to the terms of the trust-settlement executed by Miss Marjory Douglas—Finds that, by the said settlement, the said Marjory Douglas having disponed and made over her whole estate, heritable and moveable, to certairt trustees, appointed the said trustees, after satisfying and discharging her debts and funeral charges, to pay the free annual produce ofthe remainder of her estate,_in the first place, to her mother Mrs Janet Douglas, during all the days of her lifetime; and, in the next place, upon the death of her said mother, to apply the said yearly produce to and for the use and benefit of William Douglas, her eldest brother, during all the days of his life, in case of his surviving his and her said mother; and lastly (in the clause which has given rise to the present question), directed her said trustees, ‘ upon the death ofthe longest liver of my saida mother and brother, to denude of the said trust in favour of, and make paymentof any money in their hands, the one half to my brother John, and the other half to Simon Fraser and the children of the present marriage between him and my sister :' Finds that, according to the legal construction and true meaning and intendment of this clause, the interestin that half of the testator's residuary estate which was provided to the said Simon Fraser and to the children of his marriage with the testator's sister, did not vest until the death ofthe longest liver of the testator's said mother and brother, by both of whom she was survived: Therefore, sustains the claim of William Fraser and Mrs Janet or Jessie Fraser or Dykcs, as having the only good right to the fund in media, in respect of their being, at the said period of vesting, the Only parties holding the character of children of the marriage between the said Simon Fraser and the testator's sister, and ranks and prefers them accordingly, and decerns: Repels the competing claim for the Reverend Thomas Wright and others, who claim in right of Simon Fraser, the younger, as having himself been assignee to his father, the Simon Fraser of the settlement,_the said Simon Fraser the father,in consequence of his having predeceased the term of vesting aforesaid, never having had any vested right in himself to be made the subject of transference, and decerns: And finally, in respect of the difiicnlty of the case, and that it was necessary, towards a due clearing of the meaning and effect of the settlement, that ajudicial determination should be obtained thereon, finds that the whole expenses of litigation, so far as yet gone, should be defrayed out ofthe first head of the fund. and to that effect appoints both competing parties to giva in their accounts, and. when lodged, remits the same to the auditor of Court to tax and report, and decerns.
“ Note—The Lord Ordinary has hesitated much before pronouncing the above judgment. But after an anxious, and more than once resumed study of the authorities, he has come at last to be satisfied (though still without any great confidence in the result) that the judgment is in accordance, as well with the most natural view of the testator's probable intentions, as with the course of precedent, so far as, in this class of questions, one case can at all be relied on as a precedent for another.
“ The main grouan upon which the Lord Ordinary'l opinion ultimately rests is, that there is here substantially what the Court has in numerous eases given efl'ect to, as sufficient to suspend the term of vesting, viz., a destination over. _
“ If the bequest had been conceived in favour of Simon Fraser, whom failing, to any third party ( A B) nominatim, there could~ upon the authorities, have been no room for question. So, for example, ifit had been to him, whom failing, to his wife, the testalor's sister. In like manner, if it had been to him, whom failing, to the children of A B, or even to him, whom failing, generally to the children of his wife, the testator's sister, whether those of her then existing marriage with himself, 03 OF ANY ar't‘aa MARRIAGE.
“ In substance, the Lord Ordinary is unable to perceive any material distinction between these cases (especially the last) and the case now in hand. The bequest is not to Simon Fraser and ‘ his heirs,‘ or to him and ‘ his next ofhn'n,‘ or even to him and ‘ his children' generally, without reference to their being also the children of a particular mother. The bequest runs, ‘ to the said Simon Fraser anti the children of the present marriage between him and my sister,’ which (conuertendo) is just equivalent to ‘ the children of my sister, by her present marriage with the said Simon Fraser.‘ Now, apart from the delectus which the testator thus significantly indicates for Iter sister's children, and ltcr own nephews and nieces, as distinguishable from all other children whom Simon Fraser might possibly have by a different marriage, the Lord Ordinary deems it of great importance that this form of destination, equally as in the various cases put in the preceding paragraph, takes the case out of the ordinary and accustomed line of Simon Fraser's succession provisionejuris, and substitutes in its stead (contingeutly, no doubt, but still, in the event of the contingency, to important practical effects) a totally distinct line of succession provisions hominis.
" It is this to which, in the Lord Ordinary’s view, is mainly to be attributed the effect of the ultimate destination (to the children of the testator's sister) asa proper destination over. If, indeed, the bequest had run-to Simon Fraser and ‘ his children‘ unqualifiedly, without pointing at any distinction among those children as the issue of particular mothers, the case would have been the same in substance with Mirrilees, 17th May 1826, Marchban/ts, 18th February l836, &c., and a corresponding decision must of course have been pronounced. Even in that class ofcases, however, it was made a question whether an ulterior destination to the legatee's own immediate representatives ought not to have received effect in the proper character of a destina. tion over, so as to qualify and suspend the term of vesting. it was indeed held entitled to no such efl‘ect. But that result was not arrived at without diliiculty; and the ruling principle in the decision appears to have been, that the destination in the deed being concurrent with the ordinary and legal course 0f the legatee's natural succession, was neither more not less than an extended provision to the legatee himself, and so was not to be construed adversely to hisinterest (as, if beingin favour of some third party, it had broken in upon the natural current of his succession), but rather as a circumstance still more expressly pointing out himself as the sole persona predilecto of the bequest, his lineal representatives being introduced into the destination merely to prevent the legacies lopsing, as it might have done, through his predecease.
“ Nor is the distinction between such a case and the present to be viewed as nothing but u subtlety. That it has body and substance iii it as well as principle, will at once be conceded, if it be only supposed for a moment that Simon Fraser had had (as might have been the case) two distinct firmilies of children by different marriages. The destination to the chiltlren exclusively of one of these families would in that case have plainly operated an interference with the legal course of succession. It would not have been a destination to the parties naturally errtitled to succeed. The children of such a destination would, on the contrary, have formed a class by themselves, altogether segregated and set apart out of that larger family which would have been let in under a destination to Simon Fraser and his general representatives. So that in truth this favoured portion of the family comes truly, in the question of principle and construction, to constitute, as in contradistinction to the children generally, a third party. And so considering them, the Lord
Ordinary has felt it his duty to give to the destination in their favour all the effect of a destination over, just as he must have done if that destination had been a destination in favour of Simon Fraser; whom failing, to the children ofA B, or to any other party not being Simon Fraser's lineal and direct representative.
“ There are one or two additional circumstances which may shortly be referred to, as still further illustrative of what may be presumed to have been de fircto the true intent of the testutor.
“ l. The testator anticipated the possibility of Simon Fraser's entering into a ascend marriage, and having other children than those ‘ of the present marriage between him and my sister.’ Is it not, then, a natural presumption that, as she plainly intended to favour her own relatives, so, looking to the probably distant term when the succession was to open, and the possible death of Simon Fraser himself in the meanwhile, she must have had it in view to make her own nephews and nieces conditional institutes. _
“ 2. Then, erfigurn verborurn at least, no present interest in the estate is given to Simon Fraser or any one else. The estate is vested in trustees for different purposes, which are successively to come into operation after distant intervals of time. Not only in this way is all technical difficulty as to the fee being in pendente overcome, but it being the express direction of the testator, that untila certain event the trust is to continue to subsist, while it is not until after the event has actually occurred that the trustees are to denude, it is hardly presumable, in the mere quastio ooluntatis, that the testator had it in her mind to confer a vested right before the period had actually arrived when her directions were to be carried, and were for the first time capable of being carried, in terminis into effect.
" 3. Finally, the trustees are ' to make payment of any money in their hands.‘ But in their hands-when 5’ Clearly when the event occurred in reference to which alone they are instructed to denude. But may not the testator be presumed to have intended, tbot as the money to be paid over was to be money then existing in the trustees' hands, so the party entitled to receive that money was likewise to be some individual actually living and in existence at the time?
“ The Lord Ordinary is aware that such circumstances as have just been adverted to have, in various instances, been disregarded as insttfiicient, per se, to control a particular construction of the settlement, where other conflicting circumstances of a still more important character forced such a construction upon the Court. And, indeed, had the present question occurred in regard to that half of the testator’s estate which stands destined to her ‘ brother John,’ without any ulterior destination over whatever, they must of course have been disregarded even in the present case. Accordingly, the Lord Ordinary has laid no great stress upon any mere incidental considerations of this kind in coming to the conclusion embodied in his judgment. But as, in regard to that half of the estate which alone is here in question, the considerations referred to, as well as every thing else, appear all to concur in giving support to that judgment, neither are such considerations on the other hand to be entirely ovulooked.
“ It is perhaps one. awkwardness in the present case, that a dtfi’erent period of vesting has been arriVed at as regards the time of vesting of that half of the estate which is now in dispute, from what most probably have been arrived at had the question concerned that other half which was destined to the testator's brother. It is also not without moment to observe, that if Simon Fraser had survived the period of nesting, which the judgment assumes, he would then have succeeded to that full measure of vested right which would unquestionably have enabled him to defeat the ulterior destination in favour of his children. Accordingly, it is these arid such other considera. tions which have occasioned the difficulty that the Lord Ordinary has felt in the case. But the same apparent incongruity has attended the disposal of many similar questions. And indeed (which has entirely reconciled the Lord Ordinary’s mind to the result), the difficulty and the incongruity as regards the two portions of the estate, would in the present case have been identically the same, if the portion now iri dispute had been destined, not to Simon Fraser and his children by the testator's sister, but to him, whom failing to ANY 'rrrran raa'rv (A B) nominatim. Such a destination would, by all the authorities, have unquestionably suspended the time of vesting, as regards the portion of estate to which it was applicable, whatever the case in regard to any other portion destined to the testator'a brother. While, on the other hand, had Simon Fraser survived the period of vesting, what would, prior to this period, have operated as an indefensible conditional institution in favour of A B, would, afler that period had arrived, have become defeasible by Simon Fraser, as a mere ordinary substitution, over which he had entire control.
[graphic]
“ Looking to the difficulty of the case, the Lord Ordinary has thought it no more than reasonable to award the expense of the whole discussion upon both sides of this competition out ofthe estate. That discussion was unavoidable in clearing the terms and import of the settlement. And in other questions where such was the case, there is ample precedent, it is thought, for what the Lord Ordinary has thus done.”
The trustees of Simon Fraser (the second) reclaim
ed. In support of the Lord Ordinary’s interlocutor it was argued,— That there was only two ways of treating the last provision of the settlement. it was either a conveyance of a half of the residue jointly to Simon Fraser, and the children of the present marriage between him and the sister of the testatrix; or it was a conveyance of the half to Simon and the children in succession, viz., to the children after failure of Simon. The first construction was not the true one, at least it was not the one founded on. The other was the correct one, as the clause constituted a destination over, and provided, that unless Simon survived both liferenters, the children were to take on his failure. “ And" was to be read as “ whom failing." The clause was express in preventing any vesting in Simon, as it provided that the trustees should only denude and pay on the death of the longest liferenter to the survivor. A trust was not of itself, certainly, a conclusive ground for pleading that no vesting could take place during its subsistence; but it was an essential element in a question of vesting. But when there was joined to it, as here, another element, viz., that of a conditional institution or destination over to the children on Simon‘s failure, it conclusively showed that no vesting could take place so long as the trust endured; and it could only come to an end by the death of the longest liver of the liferenters: Provan, 14th January 1840. Johnston, 9th June 1840. Clellund, 20th June 1839.
Answered— That the clause could not be read as involving any destination over, or conditional institution, and, therefore, that the mere element of a trust could not of itself prevent the. vesting in Simon e‘ morte teatatoris, which, as the general rule, Was the proper course here: (Per Lord Corehouse in Maxwell v. Wyllie, 25th May 1837.)
Lord Justice- Clerk—The words are very peculiar. (Reads last provision.) The trustees are to denude and pay, on the death of the longest liver, to Simon and the children. These are very strong terms. If Simon had been alive, could the trustees pay to Simon alone? Would that be a sufficient discharge to the trustees for the whole half, where the children are joined in the destination_“ to Simon and the children." The word “ and" I cannot read as “ whom failing." 1 think it much stronger, and more favourable.
Rut/terfurd._There can only be two readings. Either it is a joint bequest—a construction which the claimants either repudiate or don't plead_or it is a conveyance in succession. It is not to Simon and his heirs, but to Simon alone, and a particular class, who might not have been his heirs—as in the case of heritage. His heirs are not substituted to him. It is he alone who is named, without any substitution. Therefore, on his failure, it must of necessity go in succession to the other class named in the deed. Consequently, though “ and" may not al~ ways indicate or be taken for “ whom failing," it must here be taken in that sense; or what was the same thing, as giving the half, after Simon's failure, in succession to the children of the particular marriage, since he, from having failed, could not take.
Lord Justice-Clerk._1 have no doubt that the claim of William Fraser and Mrs Dykes must be sustained, but Iam not satisfied either with the interlocutor or the note of the Lord Ordinary. Valuable principles are to be gathered from the decisions on such questions, but still the deed itself must be looked at as the regulating consideration ; and 1 have found no case exactly similar to it which can be taken as a rule here. After great consideration of all the cases, I cannot take a destination or substitution as decisive of the case, and as suspending vesting. I cannot enter into that question, as, in Provan, Johnstone, and various other cases, all the Judges held that that could not be looked upon as the sole, conclusive and overruling test, as to whether there was or not a vesting, or whether it was suspended. It is one element along with others; but there are many cases which may be figured whereit would not apply as a general rule. in the case of Leach it was not taken, and that case is fatal to it as a general rule; and in regard to whether one portion of a residue is to Vest, and another not, which it is quite clear a testator may order, the intention is to be gathered from the meaning of the testator himself. Here it is plain a half vested in John; and in regard to that, I do not think that any argument can be drawn, as was attempted, from that, to the effect that the half destined to Simon and the children in the latter part, must vest also in Simon, else there would be an inconsistency in the deed. The testatrix ordered it to vest in John; that is enough. And the question here is, without any inconsistency, whether the other half vested in Simon—or what is the meaning of the clause? Now, in that question, I cannot take the word " and" as " whom failing." I find no warrant for that meaning, and there are many cases where it could not apply. 1n the case of Brown, the conjunctive “ and" was not taken by any of the Judges. In several of the cases, the use of technical terms has misled as to the real point for decision. Here it is supposed that the case will be solved by the inquiry, whether any interest vested in Simon; but, in my opinion, the true question is, not whether any thing vested in Simon Fraser, but whether he had the power of disposal should he die before the time when the trust came to an end. It is no doubt true, in some sense, that if nothing vested, he could not dispose of any thing; but there may be a vesting for various impOrtant legal purposes besides a power of disposing. The case of Campbell, 12th June 1840, is a remarkable illustration of this. 1 look on the point here as a general question on the whole clause, who are the parties in whose favour the trustees are to denude? And I see no difficulty arising from the fact that the same clause contemplates different results as to the two halves of the residue. The case of Campbell furnishes a very striking example of this, and there the Court disregarded it. In the question before us, 1 take all the facts ofthe particular case into consideration for deciding the question,-not simply the fact or not of there being a destination over; but has that,first, there is a trust for certain purposes. That is very material. Second, It is also of great importance that the trust was contemplated to be of considerable duration. Third, 1 observe the very special nature and terms ofthe provision to Simon, and 1 contrast them with the terms of the provision to her brother John, (reads last provision). These are elements 1look at in deciding the case, and I ask, are the two provisions in favour of Simon and John to have the same effect? is it reconcilable to common sense to say, that the provisions of a half to my bro~ ther John, and the other half to the brother-in-law and the children, are ofthe same nature, and that the one is to have the same effect as the other,_-that Simon is to have the same power of disposal as John, and so defeat the children ? 1 cannot take that. The one was the brother of the testatrix, preferred from relationship in blood, the other was the brother-in-law; and it was natural, asl think the deed, provides, that the one half should vest, as it does, in John. In regard to the brother-inlaw, I do not think there is, nor was it natural there should be any such predilection. He was specified not on his own account, but in respect of his children. To allow him to take the whole of that half from the children, would, in my opinion, be a most violent invasion on the deed. The question is, who are the parties who are intended to receive fulfilment of the trust when the period for its execution and for payment arrives? and is not that period to be looked to as determining the parties to he benefited? 1 think the period for denuding fixes for whom the trustees held, and to whom they must denude and pay. It is “ to Simon Fraser and the children," &c., “ not generally, and his heirs," but specially the children of the marriage between him and the sister of the testatrix. Now, I do not think it would be a valid execution of this settlement to make payment to Simon Fraser's executors, when the children are alive, and demanding payment. It is a question as to the proper execution of the trust, conformanywith the will of the testator, and not a question on the construction of a destination ; and I consider that neither, in spirit nor in terms of the deed, could it be a valid execution of the trust to pay to Simon Fraser. 1 do think that an interest did vest in both for many purposes; and it might have been a question, had Simon now survivad, what did Vest; but I am not called on to give an opinion on that question. The view I take is, that the trust was to subsist during the liferent, and the trustees were, on the elapse of it, directed to denude of the trust, and pay at that time, to and in favour of Simon Fraser and the children. If both had survived, it may be that Simon would have taken alone, but I give no opinion on that; but if Simon did not survive, then Iapprehend that the surviving children were the parties alone entitled to demand fulfilment of the trust. Iconld wish, however, that an alteration were made on the interlocutor, as I think that, as it stands, it is made to turn unnecessarily on the technical question as to vesting, instead of dealing with it as a question of intention on the deed, as to the proper fulfilment of the trust.
Lord filedwyn.-~The Lord Ordinary observes that he had great hesitation in the case; and after much consideration, I must say that any view that loan take ofthe case is liable to very considerable objection. [am not motled with the argument that there is any inconsistency in holding a half to be vested in John, and not doing the same with the other halfin regard to Simon. Nor can I read the word “ and" as “ whom failing" " Whom failing" is the usual mode employed for expressing a conditional institution. This is not a deed drawn by the lady herself, but by a man of business, and therefore, there is the greater reason for rejecting such an interpretation. Neither can I take “ and" as meaning “ or," as that would be inconsistent with the plain meaning of the testator. In all such cases as this, the proper rule is the intention as gathered from the deed. It was (for there can be no dispute as to this) the intention of the testatrix to give her mother a liferent, and the execution of the trust was equally, in her view, giving one half to her brother John, and the other half to Simon and the children on the decease of the lifercnters_-that half being as completely given to the children as the other to John. In regard to the latter half, as raising a question of vesting, Ithink some thing did vest in Simon,_certainly not a right to the halfitself for disposal, but probably a right of administration as father of the children. I cannot take the clause as vesting Simon in any right of disposing, or any right other than for the purpose of administration. Now, whether I look upon the clause in that way, or as giving a right to the children in succession, on the failure of Simon before the decease of the liferenters, it results in the same end—giving the half to the children; and I cannot say that I am prepared to differ from the interlocutor of the Lord Ordinary.
Lord Monereifli-Notwithstanding the views I have heard expressed by your L0rdships, I must confess I think the case is exceedingly clear, and I cannot but concur in the opinion stated by the Lord Ordinary. I must say I thought the case so clear from the outset, and so well decided by the Lord Ordinary, that I never thought ofprepnring any notes of my opinion for disposing of the case. Nobody ever thought that there was any other role for trying such a question but that which is afforded by the deed itself, as showing the intention of the testator. We must look to the whole clauses of the deed to find what that intention is. A point which I had thought had been settled, following very high authority, viz., Sir Ilay Campbell in the case of Wallace, and Lord Corehouse in that of Wyllie, was, that where in a deed you had no means of arriving at intention from express words, you were to look to the circumstance of there being a destination over, to say whether there was a vesting a morle testatoris, or whether it was suspended till afterwards. No doubt that is not a sole and conclusive element for determining the question, but it has been decided to be one element in default of any others, for judging of such a question. There has been some misapprehension as to the cases of Provan, &c., where there was an absence ofa destination over; but the leading feature is, that the occurrence of the destination over was
, an element in default of others, which was taken as decisive that vesting did not take place. If we could take the rule which once prevailed, that the existence of a trust in itself prvented vesting, the matter would be clear here; but that we cannot now do on the cases, and yet still I think the question here is, with all deference to your Lordship in the chair, a question of vesting. The words of the last clause are very peculiar-(reads). The intention of the deed seems to me to be one which should provideforthe near relatives ofthe testatrix. There was to be a vesting as to her brother John in the one half, and there being no qualification as to that half, but an absolute vesting, marks, to my mind, very pointedly the difl'erence between the way that half was left, and the way the second half was conveyed. It marks a difference between the brother and brotber-in-law in the interest they were to have, and that was, in my opinion, that a half should go absolutely to John. but that the other half should go to the children if Simon predeceased the period when the trust came to an end by the death of the two liferenters. With regard to the form of the clause, I really do not care whether you read the word " and" as whom failing or not, or as being in succession. In any view it must come to this, in my opinion, that the children were meant to take the half when the trust came to an end. However the thing may be in point of form, the substance of the matter, to my mind, is, that the intention of the testator was to give the children an absolute right to the half when the liferent and the trust came to an end, and that independently of the father, Simon Fraser. Your Lordship dissents from the interlocutor, but I can see no reason for doing so. It is very ditficnlt to say that there was a vesting in Simon, and yet not admit that be was entitled to dispose of it when the trust came to an end. To that view I do not assent.
Lord Justice- Clerk.--I certainly don't think the power of disposal vested, but I am inclined to think there was a vesting to some effect.
Lord Medwyn.-I am rather inclined to the same view, and in the way I have explained.
Lord Moncrieff-I confess I think we cannot do otherwise than adopt the interlocutor.
Lord Justice- Clerk—I am against that, as binding as to the findings and views of the Lord Ordinary, to which I cannot agree.
Lord Moncrieff_Then I would suggest we should sustain the claim of William Fraser, 8:0.
Lord Justice-Clerk.-_l could agree to that, on the understanding that your Lordships do not confirm the views of the Lord Ordinary.
Lord Moncrieff—It is enough to sustain the claim of W. Fraser, and that may save the point in expression, but it is in substance much the same as the interlocutor.

The Court
" Adhere to the interlocutor complained of, in so far as it sustains the claims of William Fraser and of Janet or Jessie Fraser or Dykes, and of new decern : Find the said claimants entitled to expenses since the date of the interlocutor of the Lord Ordinaiy ; allow the account," &c.
Lord Ordinary, Ivory For Thomas Wright, $c, G. G. Bell, Inglis; J. It. Calvert, W.S., Agent.—Alt. Rutherfurd, Pattison; W. Mason, S.S.C., Agent.—[G.D.F. |

See also:
•  Douglas of Garvald



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