Scottish Court of Session Decisions

This was an action of multiplepoinding and exoneration at the instance of Robert Gibson, residing in Portobello, and others, the whole trustees nominated and accepting under the trust-disposition and settlement of the late William Walker Gibson, corn merchant, Leith, pursuers and nominal raisers, against Mrs Ellen Percival Gibson or Ross, wife of William Ross, C.A., and only child of Mr W. W. Gibson, and also against William Walker Gibson Ross and Reginald Carew Ross, her pupil children, and Robert Dobbie Ross, W.S., and others, trustees under Mr and Mrs William Ross' marriage-contract, and against Mr Gibson's next-of-kin. The circumstances under which the action arose were as follows:—Mr Gibson, a partner in the firm of Gibson & Walker, Bonnington Steam Mills, died on 1st

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April 1875. He left a trust-disposition and settlement, dated 18th October 1866, and recorded 9th April 1875. The whole of his means were by this deed conveyed to his trustees. By the first purpose the truster provided for payment of his debts and funeral expenses and the expenses of the trust. The second purpose authorised the trustees to retain in the business of the copartnery such part of the capital thereof as might be provided under the contract of copartnery in operation at the date of the truster's death. Further, the trustees were directed to conform to the said contract of copartnery in all respects. By the third purpose each accepting trustee was to receive £100; and the fourth and fifth purposes directed the payment of certain legacies and annuities. The legacies had at the date of this case all been paid; and the only annuitant who survived the truster was his brother John Gibson, to whom the trustees were paying an annuity of £400. The sixth purpose of the trust provided that the trustees should make offer to sell to the surviving partners of the firm of Gibson & Walker the truster's interest in the property of Bonnington Mills and whole plant thereof, in the manner therein directed. This offer was made by the trustees, and refused by the surviving partners. By the seventh purpose the trustees were empowered to sell or feu the lands belonging to the truster, or to convey, as they might see fit, to the beneficiaries after named, all the truster's other estate and effects. And the eighth and ninth purposes of the deed were as follows:— “In the eighth place, I direct and appoint my trustees to retain in their own hands the whole residue of my estate and effects, including the said mills, or the price thereof, and the said lands retained for feuing, until my only child Ellen Percival Gibson, at present residing with me, shall be married, and a child shall be born of her marriage; and I further direct and appoint that until my said daughter shall attain majority or be married, my trustees shall pay to her, or apply for her behoof and benefit, the whole, or such part as may be required for her maintenance, education, and upbringing in a manner suited to her station, of the annual proceeds or income of my estate and effects; and upon my said daughter being married, my trustees shall pay over to her, for her alimentary use, the whole annual proceeds or income thereof: And further, I direct and appoint that, upon a child being born of her marriage, my trustees shall convey and dispone to her, and to the child or children of her marriage, or of any subsequent marriage into which she may enter, equally among them, if she shall not otherwise appoint (but subject always to a power of division by her among said children), and failing a child or children of my said daughter, then to my own nearest heirs and assignees whomsoever, the whole residue and remainder of my said estate which may then be vested in them: And I hereby declare and direct and appoint that neither the said annual proceeds and income of my estates, nor the fee thereof, shall be subject to the jus mariti or right of administration of any husband of my said daughter, nor shall the same be subject to his or her debts or deeds, or to the diligence of his or her creditors, but that the same shall be an alimentary and inalienable provision for my said daughter during her life; and I direct my trustees to make full provision to the above effect in the conveyance or conveyances to be executed by them in accordance with this direction. In the ninth place, in the event of my daughter, the said Ellen Percival Gibson, dying without leaving a child or children, and before said conveyance shall be executed, I direct my trustees, at the first term of Whitsunday or Martinmas after her death, to make payment of a legacy of One thousand pounds to the Royal Infirmary of Edinburgh, and of another sum of One thousand pounds to or among such other charitable institution or institutions as I may direct by any codicil hereto, or by any other writing under my hand however informal, and to divide, convey and dispone the whole residue of my estate equally among the whole persons then alive who would by law succeed to my personal estate.” Then followed clauses as to investments of the trust-funds, and assumption of additional trustees, and other usual clauses.

Mr Gibson's child, Miss Ellen Percival Gibson, was married in 1874 to William Ross, chartered accountant in Edinburgh, and on March 23, 1874, an antenuptial contract of marriage, to which the truster was a party, was entered” into between them. By this contract certain provisions were made by Mr Ross for his wife should she survive him; and Miss Gibson on her part assigned to Robert Dobbie Ross, W.S., John Ross junior, W.S., William Walker, and James Graham Walker, as trustees, the whole means and estate, heritable and moveable, belonging to her, or to which she might acquire right during the subsistence of the marriage, “but excepting always from the above conveyance all such estate and effects as the said Ellen Percival Gibson may succeed to under any destination or provision which may settle the same upon herself or her heirs exclusively, or which may otherwise exclude the same from falling under the above conveyance.” Moreover, by the marriage contract Mr Gibson conveyed to the trustees various feu-duties and properties, to be vested in them for certain specified purposes. Then followed clauses as to the application of the trust-funds by the trustees, which were to the following effect:—1st, Mrs Ross was to receive the free income, excluding the jus mariti and right of administration of her husband; 2d, Mrs Ross, if her husband predeceased her, was also to receive the free income, and if there were no issue of the marriage the capital was to be paid to her on its dissolution; 3d, Mr Ross was to enjoy the liferent if she died before him leaving issue; and 4th, if she predeceased him without issue he was to have the half of the free income, and the capital was to pass to her assignees. The provisions to the children of the marriage were also declared to be in full of all legal claims arising on the death of their parents, “excepting only their goodwill, and that the said children may succeed to them or either of them in the event of their not otherwise disposing of any estate or property belonging to them and at their disposal and at their respective deaths.” Ample powers of management were conferred on the trustees, who were further appointed tutors and curators to the issue of the marriage. The contract also excluded from all funds falling under the trust the jus mariti and right of administration of Mr Ross.

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There are two children born of the marriage, namely, William Walker Gibson Ross, born on 23d January 1875, and Reginald Carew Ross, born on the 5th of June 1876.

An important part of Mr Gibson's estate consisted in his interest under the copartnery of the firm of Gibson & Walker. That firm was constituted by deed of copartnery dated 29th September 1866, and was to terminate in March 1877. On 15th April 1875 a meeting of the trustees was held, Mr Ross being present, and a minute was then agreed to, of which the following are the important portions:—“The Messrs Walker stated that it was not their intention to purchase Mr Gibson's share of the mill property and machinery, and that they dispensed with any offer of the property being made to them by the trustees. They further stated that it was not their intention to take over the copartnery concern under the provisions in the fourth article of the contract, and that the copartnery concern would therefore fall to be wound up, under such arrangements as might be agreed on between them and Mr Gibson's representatives; and that, as a heavy loss would undoubtedly arise to all parties interested from a forced and immediate realization and winding-up, they were quite ready to concur with Mr Gibson's representatives in any arrangements in regard to the copartnery affairs that might be deemed most advantageous for the interests of all concerned.

All the parties present expressed themselves quite satisfied that the copartnery could not be immediately wound up without a heavy loss. The mills and machinery do not form a property which would readily sell in the market, and a forced or hurried sale of them would entail a certain and heavy loss. If the business were to be discontinued and the mills closed, a large loss of rent would immediately ensue, besides which the value of the mills in the market would be very greatly deteriorated, as they could not thereafter be offered for sale as a going work in connection with an established business, and the value of the business would also be sacrificed …. and further, that the account in the books as a guarantee against fire also formed a difficulty in the way of an immediate winding-up. Looking to these considerations, all the parties concurred in opinion that the only course that could be followed to avoid a heavy loss is to continue the business on the same footing as it has hitherto been carried on, till the termination of the contract in March Eighteen hundred and seventy-seven.

Mr Ross, on behalf of Mrs Ross and himself, and of his child, stated that it was Mrs Ross' desire and his own that this course should be followed, and consented thereto; but in respect they consider that Mr Gibson's trustees are bound, under the eighth article of his deed of settlement, to convey the trust-estate to Mrs Ross, they reserve entire their right to vindicate their claim to said estate—all answers thereto being likewise reserved. Mr Gibson, on behalf of his brothers and himself, for all interest they might have in the estate, expressed the same desire and consent. The Messrs Walker stated that they, as surviving partners, quite concurred in the above, and are quite willing to continue the management of the business on the footing above set forth. The trustees therefore, with this consent and concurrence of all the parties interested, resolved that the business should continue to be carried on in the meantime by the Messrs Walker, as surviving partners, for the joint behoof—the capital of the parties and the share of profits remaining in the same position as if Mr Gibson's death had not occurred, and the trustees and their factor having full access to the books and papers, and being advised with generally in regard to the copartnery affairs.”

Following upon this meeting and minute, a formal agreement was entered into on June 20 and 22, July 21, and September 5,1876, between—(1) Mr Gibson's trustees, (2) the surviving partners in the firm, (3) Mr and Mrs Ross and their children, (4) Mr Gibson's next-of-kin, giving effect to the arrangement, and agreeing as follows:—“First, the copartnery and business of Gibson & Walker shall continue to be carried on subsequent to March Eighteen hundred and seventy-seven, under the existing contract of copartnery, and on the same footing as at present in all respects, until a favourable opportunity shall be found of disposing of or letting the mills and machinery, or, failing such opportunity occurring, until any of the parties hereto shall give notice to the others of his or her or their desire that this arrangement shall be terminated and the copartnery affairs wound up. Second, During the subsistence of this agreement the business shall be carried on and managed by the Messrs Walker, as surviving partners, in the same manner as hitherto, the capital of the parties and their shares of profits remaining the same as if Mr Gibson's death had not occurred, and as if the period of dissolution specified in the contract of copartnery had not arrived, the first parties having at all times full access to the books and papers of the copartnery, and being advised with generally in regard to the copartnery affairs. Third, The third parties, without prejudice to their rights under the said trust-disposition and settlement of the said William Walker Gibson, and the said William Ross as administrator, and taking burden on him as aforesaid, hereby bind and oblige themselves to indemnify the said William Walker Gibson's trustees against all liabilities which they may incur to creditors of the firm during the continuance of the said business,” &c.

This being the position of matters, Mrs Ross in the present action claimed to be ranked and preferred (under burden of the annuity of £400 already mentioned) to the whole fund in medio, in accordance with the provisions of her father's settlement.

Claims also were put in (1) for the trustees of Mr Gibson, (2) for Mr and Mrs Ross' marriage-contract trustees, and (3) for the pupil children of Mr and Mrs Ross, by the curator ad litem appointed to them. The trustees of Mr Gibson claimed to be entitled to retain in their own hands the trust-estate so far as it consisted of the partnership interest, and that until it could be realised advantageously, or, at least, without serious loss. As to the other portions of the trust-estate, heritable and moveable, they claimed the right, under the eighth purpose of the trust-deed, to “insert in the dispositions, assignations, or other deeds of transfer to be granted by them, words of destination limiting the interest of Mrs Ross to a liferent allenarly, and exclusive of the

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jus mariti and right of administration of her husband, and of the diligence of his or her creditors, and settling and securing the fee upon the child or children of her marriage, or of any subsequent marriage into which she may enter, equally among them, if she shall not otherwise appoint, but subject always to a power of division by her among the said children, and failing such child or children, then to the truster's own nearest heirs and assignees whomsoever.”

The marriage-contract trustees of Mr and Mrs Ross claimed the whole residue of Mr Gibson's estate, to be administered and disposed of in accordance with the provisions of the marriage-contract.

Lastly, The pupil children of Mr and Mrs Ross, by their curator ad litem, claimed that Mr Gibson's trustees should be ordained forthwith to execute a conveyance such as that claimed on behalf of the trustees themselves, but without including the destination to the next-of-kin.

The pleas-in-law for the trustees of Mr Gibson were:—“(1) On a sound construction of Mr Gibson's trust-settlement, his intention was that his estate should be conveyed under the eighth purpose, in a realised form, and the direction to be construed is in effect a direction to convey and dispone such estate as and when realised, and after a child should be born of the marriage of Mr and Mrs Ross. (2) The claimants having, in a fair and proper course of administration, and at the request of the beneficiaries, agreed to postpone the realisation of the truster's interest in the firm of Gibson & Walker, they are not entitled, nor are they under obligation, to execute a conveyance of that part of the trust-estate in its present state of investment. (3) In respect of the expression of the truster's desire that the conveyance or conveyances to be executed shall contain full provisions for securing an alimentary and inalienable interest to his daughter during her life, it is the duty of the claimants to insert a, destination in said deeds limiting Mrs Ross' interest to a liferent allenarly, and also in such terms as will secure and settle the fee of the said residue upon the pupil children and any other children of the present or any subsequent marriage of Mrs Ross, equally among them, if she shall not otherwise appoint, but subject always to a power of division by her among said children. (4) In respect of the truster's directions, the trustees are not entitled to convey to Mrs Ross in such terms as would place the property within the power of her husband or his creditors.”

Mrs Ross pleaded—“(1) Upon a just construction of the said trust-disposition and settlement, the claimant is entitled to demand from Mr Gibson's trustees an absolute conveyance of the residue of his whole means and estate. (2) The claim for the nominal raisers being untenable and without sufficient foundation, should be dismissed.”

The marriage-contract trustees pleaded that they were entitled to be ranked and preferred in terms of their claim, and the curator ad litem pleaded that he was entitled to have Mr Gibson's trustees ordained to execute a conveyance in terms of his claim.

The record having been closed, the case was debated on 22d December 1876, and on 27th December the Lord Ordinary appointed the cause to be further argued by one counsel for each of the parties other than Mr and Mrs Ross' marriage-contract trustees. To this interlocutor the following note was appended:—

“ Note.—The questions raised in the present action as to the sound construction of the settlement of the late Mr Gibson appear to me to be attended with much difficulty. The main questions are—(1) Whether the trust-estate of the late Mr Gibson now belongs to his daughter Mrs Ross in liferent only and her child or children in fee, or truly belongs to Mrs Ross in fee? and (2) Whether her right, if it be one of fee, is an absolute right in favour of herself, the children having a mere spes successionis, or is to be qualified so as to protect her child or children against her gratuitous acts?

I do not think that the real difficulties of the case were fully brought out in the argument submitted before the recess, and I have therefore appointed the case to be put to the roll for further argument. I may suggest for the consideration of the parties two points, viz.—(1) Whether, seeing that the truster directed that, until the marriage of his daughter and the birth of a child of her marriage, she should have right only to receive from the trustees the annual proceeds of the estate for her alimentary use during her life, and that no conveyance of the trust-estate should be made until a child should be born by Mrs Ross, the direction then to convey to her and her child or children, when read in connection with the clause declaring the provision to her to be an alimentary and inalienable provision for her during her life, is or is not equivalent to a direction to convey to her in liferent, and to her child then born nominatim, and to her other children nascituri, in fee? and (2) Whether, assuming a right of fee to be intended to vest in Mrs Ross on the birth of a child, the trustees are or are not bound to protect the interests of the child or children in the way directed by the Court in the case of Lady Massy, 5th December 1872, 11 Macph. 173, or in any other manner.”

The case was further argued on 13th January 1877, and upon 20th January 1877 the Lord Ordinary pronounced the following interlocutor and note:—“The Lord Ordinary … Finds that at the death of the truster the deceased William Walker Gibson, his only child Ellen Percival Gibson or Ross was a married woman, and that a child had been born of the marriage and is still in life, and that another child has since been born of said marriage: Finds that in respect of the birth and existence of said children, and in accordance with the sound construction of the trust-disposition and settlement of the said William Walker Gibson, the nominal raisers and pursuers, as trustees under said trust-disposition and settlement, are bound, after providing for the annuity of £400 per annum payable to the truster's brother John Gibson, to convey and dispone the residue of the trust-estate to the said Ellen Percival Gibson or Ross, and to the child or children of her present marriage, or of any subsequent marriage into which she may enter, in such terms and in such manner as will restrict the right and interest of the said Mrs Ellen Percival Gibson or Ross to the same to a liferent right allenarly, and will exclude the jus mariti and right of administration of her present husband or any future husband she may marry, and liability

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for his or her debts or deeds, and the diligence of the creditors of such husband, and her own creditors, and will secure the same as an alimentary and inalienable provision for the said Mrs Ellen Percival Gibson or Ross, and also in such manner and in such terms as will settle and secure the fee of the said residue to the pupil children already born of the said Mrs Ellen Percival Gibson or Ross' present marriage, and any other children of the said present or any subsequent marriage into which she may enter, equally among them, if she shall not otherwise appoint, but subject always to a power of division by her among her said children, and failing a child or children of the said Ellen Percival Gibson, then to the truster's own nearest heirs and assignees whomsoever: Therefore sustains the claims for the pursuers and nominal raisers as trustees foresaid, and for David Ogg, S. S.C., curator ad litem to William Walker Gibson Ross and Reginald Carew Ross, the pupil children of the said Mrs Ellen Percival Gibson or Ross, in so far as the same are consistent with the foregoing findings: Quoad ultra repels said claims: Repels the claims of the whole other claimants; and before further answer appoints the cause to be enrolled in order that the parties may be heard as to the amount of the fund in medio, and as to the precise terms in which the conveyance or conveyances of the said residue are to be expressed; and reserves all questions of expenses: Grants leave to all concerned to reclaim, if so advised.

Note.—The late William Walker Gibson was a partner of the firm of Gibson & Walker, corn and flour merchants, Bonnington steam-mills. He died on 1st April 1875, leaving a trust-disposition and deed of settlement, dated 18th October 1866, whereby he conveyed his whole estate, heritable and moveable, to trustees in trust for the purposes specified in the deed. The whole of the trustees so nominated accepted and are acting. By the first purpose of the deed the trustees were directed to pay the truster's debts and funeral expenses and the expenses of the trust. By the second purpose they were authorised to retain in the business of the copartnery such part of the capital thereof as might be provided under the contract of copartnery in operation at the time of his death, and to implement and fulfil all obligations that might be incumbent on him under such contract, and to conform-to the contract in all respects. By the 3d, 4th, and 5th purposes of the trust certain special legacies were bequeathed, all of which have been paid with the exception of an annuity of £400 sterling per annum to John Gibson, the truster's brother, which is still current. By the 6th purpose the trustees were directed to offer to sell to the surviving partners of the firm the truster's interest in the property of Bonnington mills and whole plant thereof, and in the event of the offer not being accepted, then on the termination of the current lease to relet the property or to sell it by private roup and sale. And by the 7th purpose the trustees were directed to feu out such portions of lands as they should consider suitable for feuing, and either to sell by public or private sale, or to convey to his residuary legatees, all his other estate and effects; and should uplift, realise, and discharge all debts and sums of money that might be owing to him at the time of his death, and should hold the proceeds thereof and apply the same as thereinafter directed.

Then follows the 8th purpose of the deed, on the interpretation of which the questions raised in the present action mainly depend. It is in the following terms:—‘In the eighth place, I direct and appoint my trustees to retain in their own hands the whole residue of my estate and effects, including the said mills or the price thereof, and the said lands retained for feuing, until my only child Ellen Percival Gibson, at present residing with me, shall be married, and until a child shall be born of her marriage; and I further direct and appoint, that until my said daughter shall attain majority or be married, my trustees shall pay to her or apply for her behoof and benefit the whole, or such part as may be required for her maintenance, education, and upbringing in a manner suited to her station, of the annual proceeds or income of my estate and effects, and upon my said daughter being married, my trustees shall pay over to her, for her alimentary use, the whole annual proceeds or income thereof: And further I direct and appoint, that upon a child being born of her marriage, my trustees shall convey and dispone to her, and to the child or children of her marriage, or of any subsequent marriage into which she may enter, equally among them, if she shall not otherwise appoint (but subject always to a power of division by her among said children), and failing a child or children of my said daughter, then to my own nearest heirs and assignees whomsoever, the whole residue and remainder of my estate which may then be vested in them: And I hereby declare and direct and appoint that neither the said annual proceeds and income of my estates, nor the fee thereof, shall be subject to the jus mariti or right of administration of any husband of my said daughter, nor shall the same be subject to his or her debts or deeds, or to the diligence of his or her creditors, but that the same shall be an alimentary and inalienable provision for my said daughter during her life; and I direct my trustees to make full provision to the above effect in the conveyance or conveyances to be executed by them in accordance with this direction.’

The truster died, as has been mentioned, on 1st April 1875, survived by an only child, Ellen Percival Gibson, who had been married in 1874 to William Ross, C.A. in Edinburgh, their antenuptial contract of marriage having been entered into on 23d March 1874. Two children have been born of the marriage, viz., William Walker Gibson Ross, who was born on 27th January 1875, during the truster's life, and Reginald Carew Ross, who was born on 5th June 1876. The contract of co-partnership current at the date of the truster's death was dated 29th September 1866, and was to endure until March 1877. After Mr Gibson's death the surviving partners intimated to the trustees that it was not their intention to purchase Mr Gibson's share of the mill, property, and machinery, and that they dispensed with any formal offer of the property being made to them. They further stated that it was not their intention to take over the copartnery concern under the 4th article of the contract, and that the concern would therefore fall to be wound up under such arrangements as might be agreed to. The parties appear to have been satisfied that a forced or hurried sale of the mills and machinery would entail a certain and heavy loss upon all concerned, and in consequence the trustees, with consent of Mr and

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Mrs Ross, seem to have agreed that the business should be carried on by Messrs Walker, as surviving partners, for joint behoof, until the termination of the contract in March 1877. It further appears that at a later date, by a minute of agreement between (1) the trustees, (2) the surviving partners of the firm of Gibson & Walker, (3) Mr and Mrs Ross, and the said William Ross for himself and on behalf of his wife and children, and (4) three of the trustees, viz., Robert Gibson, James Young Gibson, and John Gibson, the truster's brothers, and his nearest heirs and representatives failing his own direct issue, it was arranged that as an advantageous sale of the mills and machinery, even in March 1877, could not reasonably be looked for, the business should be carried on subsequent to that date under the existing contract as if the period of dissolution had not arrived, and that this arrangement should continue until favourable opportunity should be found of disposing of or letting the mills and machinery, or until any of the parties should desire the arrangement to be terminated and the concern wound up.

Besides the mills and machinery, and the ground on which the same stand, and which is used in connection with the works, the truster possessed heritable property of considerable extent and value in the neighbourhood of Bonnington and in Edinburgh. The moveable estate of the truster, as stated in the inventory given up for confirmation, amounted to upwards of £20,000.

From what has been stated it will be readily seen that the time contemplated by the truster for the winding-up of his estate has arrived. All his debts, legacies, and annuities, have been paid, excepting the annuity of £400 per annum to his brother John, which will be met by laying aside a capital sum sufficient for the purpose; and his daughter Mrs Ross is not only married, but is the mother of two children. Indeed, one of these children had been born before the truster's death, so that the trustees were bound to denude of the trust-estate as soon as they could conveniently realise the same after the death of the truster. The trustees indeed maintain that, although they may be bound to denude of a part of the estate, they are entitled to retain not only an amount of capital sufficient to meet John Gibson's annuity, but also the mills and machinery, and so much capital as may be necessary to carry on the business until a suitable opportunity for selling the same shall occur. It appears to me, however, that without the consent of the fiars of the estate the trustees are not entitled so to retain or apply any part of the trust-funds, at all events after the expiration of the contract of copartnership in March 1877. If Mrs Ross is held to be the fiar, then she may grant or withhold her consent, as she and her husband and her marriage-contract trustees may arrange; but if her children, who are pupils, are the fiars, no effectual consent can be given to the proposed retention and application of the funds. The primary and principal questions therefore to be answered are—Who are the fiars of the residue? And to whom, and in what terms, are the trustees now bound to convey the residue of the trust-estate?

On the one hand, Mr and Mrs Ross maintain that as a child has been born of the existing marriage they are entitled to call upon the trustees to convey the fee of the residue of the trust-estate, both heritable and moveable, under burden of John Gibson's annuity, to Mrs Ross absolutely, with a bare destination in favour of her children nati et nascituri, and with a declaration that the provision is to be alimentary and inalienable, and not liable for the debts or deeds of either Mr or Mrs Ross, or attachable by the diligence of the creditors of either. On the other hand, the infant children of Mr and Mrs Ross (whose interests in the action are protected by Mr David Ogg, S.S.C., as their curator ad litem) claim that, according to the sound construction of the settlement the truster intended to restrict, and has restricted, his daughter Mrs Ross' interest in the residue to an alimentary and inalienable liferent allenarly, and that he intended to confer, and has conferred, a right of fee upon Mrs Ross' first-born child, for behoof of himself and of all the other children which might be born of Mrs Ross' present or any subsequent marriage, and they desire a conveyance to be executed in favour of Mrs Ross in liferent allenarly and her children in fee accordingly. They also maintain that there should be no ulterior destination of the fee to the truster's nearest heirs and assignees whomsoever. In the claim which has been lodged for the trustees they maintain the same views as to the liferent and fee which are stated on behalf of Mrs Ross' children, but they further maintain that they are bound to insert in the conveyance the ulterior destination in favour of the truster's nearest heirs and assignees.

Having been favoured with an exceedingly able argument for all the parties upon two separate occasions, the last debate having had special reference to the questions indicated in the note to my interlocutor of 27th December 1876, I have, after the best consideration I have been able to give to the case, come to form a clear opinion in favour of the general construction of the settlement contended for by the children of Mrs Ross and by the trustees, and against that contended for by Mr and Mrs Ross. It is no doubt true that in the present case after the birth of a child of Mrs Ross' marriage the trustees are to cease to hold the estate for behoof of Mrs Ross, and are thereupon actually to convey the estate to her and her child or children; and it is also true that in the direction so to convey the estate the words ‘liferent,’ or ‘liferent allenarly,’ or any equivalent words, are not expressly used in immediate conjunction with the name of Mrs Ross. But I think that it is impossible to read the eighth purpose of the trust-deed as a connected whole without being satisfied not only that the truster meant his daughter's interest to be limited to a bare liferent, but that the directions which he has given to his trustees as to the execution of the conveyance are sufficient to enable them to give effect to his intentions. The truster begins by directing the trustees to retain in their own hands the whole residue until his only child Ellen Percival Gibson, who then resided with him, should be married, and until a child should be born of the marriage. Now, although both of these events actually occurred before the truster died, it is necessary, in order to understand the deed, to see what the truster intended the trustees to do with the residue in the event of his daughter not being married, or being married and not having a child born of the marriage. In the first place, he directed that until his daughter should attain majority

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or be married, his trustees should either pay to her, or for her behoof, only so much of the annual proceeds or income of the estate as they should think necessary for her suitable maintenance and education. In the next place, upon his daughter being married, the trustees were to pay over to her for her alimentary use the whole annual proceeds or income of the residue. The truster does not appear to have expressly provided for the case of his daughter attaining majority but being unmarried, although I think it is probable that in that case she would have been held entitled to the annual income of the estate until her marriage. And, in the third place, it is not until a child is born of the marriage that the trustees are to denude of the trust-estate. They are, however, directed to do so upon that event taking place. The duty of retention of the residue, which was imposed upon them by the introductory part of the eighth purpose, was then to cease, and the duty of conveying and disponing the residue was to emerge. And on that event occurring the trustees are directed to convey or dispone the estate to the truster's daughter and the child or children of the marriage, or of any subsequent marriage—that is to say, to the child or children so born, and to Mrs Ross' other children nascituri.

Now, although nothing is here expressly said as to the conveyance being to Mrs Ross in liferent and to her children in fee, it would certainly, looking to the previous context, be natural to expect some such limitation of her right. Why did the truster so anxiously limit his daughter after her marriage, but before the birth of a child, to a bare right to call upon the trustees for payment of the annual income of the trust-estate for her alimentary use if it was not to protect the estate of her possible children? And if so, could anything be more inconsistent with and subversive of that intention than directing the trustees immediately on the birth of a child to convey the estate to his daughter in fee without limiting her right and protecting the estate for behoof of her children? But, as I read the deed, the truster has not fallen into any such inconsistency. In the first place, although the conveyance is to be made to Mrs Ross and the child or children of her marriage, or of any subsequent marriage, it is not to be a conveyance to her and them pro indiviso or as joint disponees; there is plainly to be something of the nature of succession or separation in their respective interests. Mrs Ross is to take first, and then her children—for all her children, whensoever born, are to have an interest—the share of each being subject to her power of apportionment. And although the bestowal of this power of apportionment is not of itself conclusive, it certainly points to the conclusion that the donee of that power was not herself to have a right of fee in the estate, or a right to dispose of the estate, but only some limited and temporary right, such as a right of liferent only. In the next place, the clause goes on to declare that neither the annual proceeds or income of the estate, nor the fee, should be subject to the jus mariti or right of administration of any husband of his daughter, or to his or her debts or deeds, or to the diligence of his or her creditors, but that ‘the same shall be an alimentary and inalienable provision for my said daughter during her life; and I direct my trustees to make full provision to the above effect in the conveyance or conveyances to be executed by them in accordance with this direction.’ Now, I think that these declarations and directions are equivalent, on the one hand, to an expression of the truster's intention that the conveyance to be executed by the trustees in his daughter's favour on the birth of a child of her marriage shall operate in so far as she is concerned only during her life—that is to say, that she shall have the estate during her life or in liferent as an alimentary and inalienable provision, and the trustees are to execute the conveyance in such terms as shall give effect to this intention. Mr and Mrs Ross maintain, that even if the direction should be held to point to a conveyance to Mrs Ross in liferent and her children in fee, that would, according to the well-settled rule of law, vest her with the fee. But, as the Lord President observed in the recent case of Dawson, ‘such an alimentary provision would be a very futile and inexpedient mode of settling a fund of this kind, if a declaration that it was to be alimentary and an exclusion of the diligence of creditors were to be followed by a vesting of the fee, of course operating so as to open it to the diligence of creditors. Yet that is the result of the contention of Frances Dawson here.’ If it prevailed she could do what she liked with the money, and it could be attached by creditors. What would then become of the alimentary provision? It would perish with the fee which was to produce it, so that there would be an absolute inconsistency in giving a liferent which is declared to be alimentary, while at the same time the deed is so framed that the provision is made to vest in fee.”

“I therefore think that the truster intended that in one way or another his trustee should so denude of the estate as to restrict Mrs Ross' right to a bare liferent and secure the fee for her children. And this view is strengthened by the circumstances that no conveyance at all is to be made until a child is born of Mrs Ross' marriage. The reason, I think, plainly is, that the truster intended and desired that his trust should not be wound up until by the birth of a child a person should be in existence to whom the fee could be conveyed nominatim, and who would thus be competent to hold the fee, subject to his mother's liferent, but for behoof of himself, and with an obligation to admit all his mother's subsequent children to participate with him in the fee. Even, therefore, if it should be held that the trustees were not bound to qualify the liferent conveyance to Mrs Ross by the use of the taxative word ‘allenarly,’ they would in my opinion be bound, while conveying the fee to her in liferent for her alimentary use, and as an inalienable provision not affectable by the debts and deeds of herself or her husband, or by the diligence of creditors, to insert, as the fiars of the property, the children born of Mrs Ross' present marriage nominatim and her future children nascituri. A conveyance in such terms would, according to a well-settled rule of law, restrict the right of the parent to a bare liferent, and vest the fee in the children.

If I am right in the views above expressed, it follows that the trustees are not entitled longer to retain any part of the trust-funds except so much as may be necessary to meet John Gibson's annuity, and that they are bound to convey the whole to Mrs Ross and her children for their

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respective rights of liferent and fee. I also think that the ulterior destination to the truster's own nearest heirs and assignees should be inserted in the conveyance. In so far as the estate consists of heritage, there can be little or no difficulty in framing the conveyance or conveyances. There may be more difficulty as to those parts of the estate which are moveable; and the cause is appointed to be enrolled in order that the form and terms of the conveyances thereof may be adjusted.

As I have come to be of opinion that the interest of Mrs Ross in the residue does not amount to a right of fee, but is a liferent to her for her own exclusive alimentary use, it follows that her marriage-contract trustees can have no claim upon the fund in medio in virtue of the conveyance by Mrs Ross in their favour, contained in her antenuptial marriage-contract. She has expressly excepted from that contract ‘all such estate and effects as the said Ellen Percival Gibson may succeed to under any destination or provision which may settle the same upon herself or her heirs exclusively.’

Further, if the right of Mrs Ross is a bare liferent, and in no sense a right of fee, no question can arise similar to that which occurred in the case of Lady Massy, referred to in the note to the interlocutor of 27th December 1876. But I think it right for the information of the parties to say, that if I had regarded Mrs Ross' right to the residue as a right of fee, I should have held that it was a qualified right, that her children had more than a bare spes successionis, and that they had a right, of succession which the Court would have been bound to protect by some expedient similar to that adopted in the case of Lady Massy.

The case will now be enrolled for the purpose already indicated, and to enable the parties, if necessary, of ascertaining the amount of the fund in medio.”

Mrs Ross reclaimed, and the case was appointed to be argued before seven Judges.

Mrs Ross argued—The truster's intention here was to give to his only child a fee of the whole residue of his estate, both heritable and moveable, but subject to certain qualifications. The question really is, whether Mrs Ross' right is limited to a bare liferent? There is a direction to convey the fee of the residue. The Lord Ordinary has regarded the intention here as equivalent to a desire to protect the whole estate for the truster's grandchildren against even Mrs Ross. In point of fact, however, Mrs Ross' right as thus limited was determined by the birth of a child. No doubt there is a power of appointment, but that is a mere indication which, unsupported, cannot qualify an expressly given fee ( M'Donald— Anstruther). [ Lord President—Is there any case where the power of apportionment has been given, the fee being in the parent, without a protected right of succession? No, but in M'Donald Lord Balgray observed that the existence of the power did not affect the question of fee. The trustees maintain that in order to secure the provision being “alimentary and inalienable” they are to limit the actual fee as given by the testator to a “liferent allenarly.” It is possible that some mode of conveyance might have been found in the case of heritage alone, but here there are likewise moveables. In Dawson the right ex figura verborum was one of liferent, here it is one of fee. [ Lord President—The Lord Ordinary's view is that the truster could never have intended to settle the fee in this way, as he could not possibly do it effectually. Now, he could never, on the other hand, have meant in this way to settle the liferent, as he could not do that effectually either. The argument only goes that far]. In a recent case ( Allan) where a payment of the fee was ordered, yet the right of fee was limited, and there was no interposition of a trust. Again, in the case of Massy the effect was only to protect against the jus mariti and to give the issue a sort of protected right. [ Lord Shand—Did that give Lady Massy the fee and to the children merely a strong right of credit?] That is our contention; Lady Massy had left to her the whole power of administration. Here the children are noti, but they may fail, and the right, or whatever it is, may pass nascituris, so the observation of the Lord Ordinary as to this fails. Anyhow, there must be a conveyance to the mother and the children which will terminate the trust ( Ochterlony—Gordon). What, then, is the effect of the language here used as regards parent and child? It gives, without disputing the cases of Ramsay or Dawson as authorities, a fee to Mrs Ross ( Anstruther). The gift is one of fee, according to the plain reading of the context, and though by technical expressions what appears a gift of liferent may be extended to include a gift of fee, there is no authority whatever for saying that an express gift of fee can be reduced to one of liferent. If this was intended to confer a protected right of succession upon the children with a fee to Mrs Ross, then the power of apportionment becomes quite intelligible. The “annual proceeds” refers to one period of her life, and the “fee” to another.

Argued for the trustees of Mr Gibson—What could have been the meaning of the testator in making the birth of a child the period of the conveyance in favour of more than one person? Only that his daughter's right could then be conveniently restricted to a liferent when the fiar had come into existence. The test of the claim made by Mrs Ross is, that if it received effect the fund would not be protected, as Mr Gibson expressly directed, against her debts and deeds. The material questions here are, First, Is Mrs Ross a liferenter or a fiar; Second, if she is a fiar, is she so absolutely, or have her children a protected right of succession. [ Lord President—What was done in Lady Massy's case was possible in law; here it is said that what is imported into the deed makes an impossibility in law.] The use of “alimentary” would almost seem to be equivalent to allenarly, to judge by some cases where it has been employed ( Ramsay— Dawson).

Authorities quoted for Mrs Ross— M'Donald, Jan. 12, 1831, 9 S. 269; Anstruther v. Cunningham, March 18, 1869, 7 Macph. 689; Dawson v. Dawson, Nov. 10, 1876, 14 Scot. Law Rep. 71; Allan v. Allan's Trustees, Dec. 12, 1872, 11 Macph. 217; Massy v. Cuninghame, Dec. 5, 1872, 11 Macph. 173; Gordon v. Gordon's Trustees, March 2, 1866, 4 Macph. 501; Ramsay v. Beveridge, March 3,1854, 16 D. 764; Gordon v. M'lntosh, April 17, 1845, 4 Bell's App. 105, 3 Ross' Leading Cas. 617; Lord v. Colvin, July 15, 1865, 3 Macph. 1083; Arthur and Seymour v. Lamb,

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June 30, 1870, 8 Macph. 928; White v. White, June 1, 1877, 14 Scot. Law Rep.; Douglas v. Sharp, Hume 173.

Authorities quoted for the respondents— Ferguson's Trustees v. Hamilton, July 13, 1860, 22 D. 1442; Seton v. Seton's Creditors, 1793, M. 4219; Dykes v. Boyd, June 3, 1813, F.C.; M'Cowan v. Robb, Dee. 14, 1862, 1 Macph. 141; Martin v. Milligan, Dec. 24, 1864, 3 Macph. 326; Bell's Commentaries, vol. i., pp. 55, 125; Bell's Principles, § 1956; Bell's Illustrations, vol. ii., p. 347; Cases in Morrison's Diet, voce “Personal and Transmissible § 3;” Tennant, 1637, M. 10,372; West Nisbet, 1627, M. 10,368; Lady Pinkhill, 1709, M. 10,399.

At advising—