Scottish Court of Session Decisions

Duncan Kippen, spirit merchant, 25 Richmond Place, Edinburgh, who died on 24th April 1879, by his said trust-disposition and settlement and relative codicils conveyed to and in favour of certain trustees therein mentioned his whole heritable and moveable means and estate in trust under the burdens, with the powers and provisions, and for the uses, ends, and purposes therein mentioned.

The fifth purpose of the trust was—“For payment to my wife the said Mrs Janet Mackintosh or Kippen, if she shall survive me, during all the days of her life thereafter, of the free yearly interest, dividends, or other annual income of the trust-estate above conveyed (after payment of my deathbed and funeral expenses, the expenses of this trust, and any legacies or bequests I may leave as aforesaid), and that half-yearly as the same shall be received, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas which shall happen after my death.”

By the sixth purpose of the trust the truster directed and appointed his “trustees to pay to my said wife, in case she shall survive me, for her own use and disposal, out of the capital of the trust-estate, any sum or sums of money she may require, not exceeding in all the one equal half of the residue and remainder of the trust-estate, and that at any time, or from time to time, as she may desire, but declaring that in case any such payments are made to her, the liferent above provided to her shall be restricted to the liferent of the remainder of the residue.”

By the seventh purpose of the trust the truster directed and appointed his “trustees, at the first term of Whitsunday or Martinmas which shall happen six months after the death of my wife, in case she shall survive me, to pay and assign to her heirs, executors, and assignees the balance, if any, which shall remain unpaid to her of the equal half of the free residue and remainder of the trust-estate, after reckoning the payments out of the capital which may have been made to her by my trustees under the sixth purpose of the trust, and which are to be imputed towards payment of said half” and further, in the event of his said wife predeceasing him, he thereby directed his “trustees, at the first term of Whitsunday or Martinmas which shall happen six months after my death, to pay and assign to her heirs, executors, and assignees the said one equal half of the free residue and remainder of the trust-estate.”

Lastly, with regard to the other equal half of the residue and remainder of the trust-estate, he thereby directed and appointed his said “trustees, at the said term, to divide the same into six equal shares, and to pay and assign the same as follows, videlicet:—One-sixth share thereof to my brother the said Robert Kippen, whom failing to his children equally between them, share and share alike; another sixth share,” &c. The said trust-deed also contained the following clause—“And for accomplishing the purposes of this trust, I hereby specially authorise and empower my said trustees and their foresaids to sell and dispose of my whole estate, heritable and moveable, real and personal, hereby conveyed, and to convert it into money, and that either by public sale or private bargain,” &c., all as more fully set forth in said trust-disposition and settlement and relative codicils.

The truster, who had no children, was survived by his wife the said Mrs Janet Kippen, and under said deed she enjoyed the liferent of the residue of her husband's estate until her death, which occurred on or about 12th January 1888. She did not request, and did not receive, any payments out of the capital of the trust-estate as provided for by the sixth purpose of the trust.

The residue of the trust-estate at the truster's death, inter alia, consisted of certain house properties in Buccleuch Place and Gladstone Place, Edinburgh, which were sold in February 1888, with entry at Whitsunday 1888, and realised respectively £550 and £404. One equal half of these sums fell to be retained by Mr Kippen's trustees to be disposed of in terms of the last purpose of the trust. A difficulty arose as to the disposal of the other half of these sums, amounting to £477.

The truster's widow left a testament dated 15th October 1883, by which she appointed certain parties her executors, with full power to them “to intromit with my whole moveable estate and executry of every description,” and to pay the debts, and pay and deliver the legacies therein mentioned, and whatever residue there might be “of my said means and estate falling under this testament,” she ordained the same to be divided as therein mentioned, as more fully set forth in said testament.

The sum of £477 was claimed by Mrs Kippen's executors on the ground that on a sound construction of the trust-disposition and settlement the bequest made by the seventh purpose thereof was moveable, and passed to her testamentary executors. On the other hand, the sum was claimed by James Mackintosh, the heir-at-law of Mrs Kippen, on the ground that the bequest was heritable, and passed to her heir-at-law.

In these circumstances Duncan Kippen's trustees did not feel justified in paying this sum without obtaining the opinion and judgment of the Court, and accordingly a special case was prepared by the said trustees of the first part. Mrs Kippen's executors of the second part, and Mrs Kippen's heir-at-law of the third part, to have the following question of law answered by the Court, viz.:—“Is the said sum of £477 to be regarded as moveable or heritable, and to whom does it fall to be paid?”

Argued for the executors—The right which vested in the widow upon her husband's death was a right to moveables. All the words used in Mr Kippen's trust-deed, e.g., “pay and assign,” were applicable to moveables. He only gave his widow right to demand payment of certain sums of money, not to demand a conveyance of his heritable estate. The words “pay and assign” always pointed to conversion unless there were specialties in the deed showing that conversion was not intended. The truster here spoke of “income,” “dividends,” “interest,” not of heritage. The purposes of the trust could not have been carried out without converting the estate into money. The two equal halves could not have been determined unless the houses had

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been sold. The number of the heritable subjects, the number of the beneficiaries, and the whole provisions of the deed made conversion indispensable, so that even if the rule laid down in the case of Buchanan v. Angus, and recognised in the case of Sheppard's Trustee, were followed, the executors were entitled to succeed, but there were specialties in the latter case, which was only decided by a majority of the Judges consulted— Weir v. Lord Advocate, June 22, 1865, 3 Macph. 1006, and Baird v. Watson, Dec. 8, 1880, 8 R. 233.

Argued for heir-at-law—It might have been necessary to convert if Mrs Kippen had made a claim in her lifetime, but until her death the property remained heritable. She knew it was heritable, and her share of it must go to her heir-at-law. There was no necessity to convert after her death. It might be troublesome to prepare the necessary conveyance of the heritable property without conversion, but it was possible. Since the case of Sheppard's Trustee v. Sheppard, &c., July 2, 1885, 12 R. 1193, the rule laid down by the House of Lords in the case of Buchanan v. Angus, May 15, 1862, 4 Macph. 374, governed such cases, and it only allowed conversion where “indispensable to the execution of the trust.” The number of beneficiaries interested would not infer conversion unless there was an indication in the deed that conversion was intended— Duncan's Trustees v. Thomas, March 16, 1882, 9 R. 731. There was no such intention expressed here— Auld v. Anderson, Dec. 8, 1876, 4 R. 211.

At advising—