Scottish Court of Session Decisions

By her trust-deed of 26th December 1833, the deceased Mrs Hartley directed her trustees “immediately after my death, or so soon thereafter as the same can be advantageously effected, to sell and dispose of and realise my whole heritable and moveable property;” and she proceeded to declare, “I hereby direct and appoint my said trustees and their foresaids to apportion and divide my said trust-estate when so realised (after deduction of the provisions under the first condition of this trust) equally among my five grandsons, whose names and designations then follow; and the truster then goes on to say that they are to receive the property “share and share alike, upon their respectively attaining majority, or twenty-one years complete; declaring that in the event of any of my sais grandsons dying without leaving lawful issue of their own bodies, such deceaser's share shall be equally divided among the survivors; but if the deceaser shall leave lawful issue of his body, such issue shall.be entitled to their parents' share of my said trust-estate; declaring farther, that in the event of any of my said grandchildren, or their issue, being under age at the period of my said trustees realising and finally winding up my said trust-estate, then, and in that event, my said trustees shall set apart the share of such child or children under age until he or they shall have attained majority, my said trustees having full power either to advance or accumulate the interest during such minority as they may see expedient and proper.” By an after clause she instructed her trustees “to let my dwelling-house at such rent as they may think proper, until it can be advantageously sold, dividing the free rent obtained therefor among my said grandsons and their foresaids equally, share and share alike.”

But by a codicil of 18th April 1834, Mrs Hartley recalled and altered her settlement to the following effect:—“I do hereby give, grant, and dispone to my daughter all and whole my dwelling-house and pertinents situated in Stafford Street, Edinburgh, specially within described, with the whole household furniture of whatever denomination, boob, plate, and bed and table linen, which may be found therein at the time of my death, in life-rent, for her liferent use allenarly, and to my within-written trustees, for the special ends, uses, and purposes within mentioned, in fee; it being my wish and intention that my said daughter shall have the liferent use of my said dwelling-house and furniture, &c., if she survives me, and that at her death the whole shall be realised, along with the remainder of my trust-effects, and divided among my five grandsons within named, in manner particularly within directed; and in so far as not expressly and effectually altered by this codicil, or these presents, I do hereby ratify, approve, and confirm the within-written trust-disposition and deed of settlement in its whole heads, tenor, clauses, and contents.”

All of Mrs Hartley's grandsons are now dead, only one of them (William Dick Macfarlane) having left children, who are also all now dead. Under these circumstances Mrs Nolan, the only surviving child of the testator, claims the whole estate as intestate succession, and brings the present action of declarator of trust and denuding against the trustees of her late mother. Three of the grandsons of the testator, however, had before their death assigned their shares to certain parties who now claim their cedents' shares in respect that these vested in them at the date of Mrs Hartley's death, and that the trust has not therefore lapsed.

The Lord Ordinary (Kinloch) found that according to the sound construction of the trust-disposition and settlement and codicil the right thereby given to the grandchildren of the testatrix and their issue did not vest till the death of her daughter, the pursuer, and that all the said grand-children and their issue being dead, the right to the whole property, heritable and moveable, belonging to the testatrix, was now vested in the pursuer, her only child and heir-at-law.

The assignees reclaimed.