Trustees v.

17, 1913

in no way modified by what follows. But there is undoubtedly discretion given to the trustees to retain the shares falling to any of the children instead of paying them over, and to pay over only the annual income derived from the shares or "from time to time pay the capital of such share or shares by such instalments and at such times as they may determine."

That now raises the question which Lord Dundas has considered, whether a discretionary power of that description is or is not repugnant to the right of fee, and so objectionable under the principle established in Miller's Trustees. I do not repeat what Lord Dundas has said upon that point, but I do not think it necessary that that question should be decided in this case, for this reason-all that the testator does is to give to his trustees a discretion either to pay over the whole of the income or a part of the share to each of his children, and that discretion applies to the share of the only child with whom we are concerned, James, exactly in the same way as to any of the others. Now the trustees have exercised that discretion. They tell us that they have considered the question and that they are prepared, so far as their judgment goes, to pay over James' share to him. He has under his father's will the gift of a certain share subject to a discretionary power in the trustees to withhold it if they think fit. But that power must be determined sometime, and it is to my mind completely determined when the trustees say "We have considered the matter and do not think it necessary to withhold any part of his share and we are ready to pay it over."

Well then, that leaves only one question, which is that which the trustees themselves say they have brought this case for the purpose of raising. It is argued that the position of James' share is totally different from that of the other children, and that although they might be entitled to pay over the shares to the others, a question has been raised as to whether they are entitled to pay over James' share, because his interest is restricted to an alimentary right. Upon that I think the distinction between James' share and the other shares is not very material, but it is quite clearly expressed. After explaining the discretion which he gives to his trustees as to all the children, he goes on to say"I hereby specially provide and declare that the whole provisions hereunder in favour of the said James Watson are purely and strictly alimentary, and the same shall not be attachable by the debts or deeds of the said James Watson, nor attachable by the diligence of his creditors; and any shares or share which may be retained by my trustees in terms of the powers above conferred shall be subject to the same declaration in every respect."

Now the only distinction which that seems to me to make between James' share and that of the other children is plain enough. He says, if the trustees resolve to retain any part of the shares of the other children the part so retained shall

be strictly alimentary; but the provisions in favour of James shall be strictly alimentary and not attachable by the debts or deeds of his creditors that is to say, whether you retain a part of James' share or not it is to remain subject to a restriction that it is for his alimentary use and subject to the exclusion of his creditors. I think that the question which arises there is whether that plainly expressed purpose is good or bad in law.

I cannot quite agree with one observation of Lord Dundas, in which he seems to put it as if it was for the Court to make machinery for the working out of a provision which was not clearly expressed. I do not see that there is need to provide any machinery at all. I think the testator meant to give his son the fee, and, notwithstanding he had given his son the fee, to declare that it should be alimentary only, and that his creditors should not have power to reach it. I think that is totally ineffectual in law, The law is quite clearly settled that although you may make a liferent or an annuity alimentary you cannot make a fee alimentary so as to exclude creditors. It is open to the donor to provide that his donee shall only have the proceeds of the estate settled upon him so that these proceeds shall be secured for his alimentary use, and therefore to put the estate into the hands of trustees with such directions that they should be entitled only to apply the annual proceeds directly to his aliment and to meet the claims of such creditors only as are alimentary creditors. But, subject to that qualification, the law is that no man can have a right of fee in money or property and at the same time exempt his property from the diligence of his creditors. You cannot give a fee to a man and say to his creditors Do not attach it." That is what I think the testator here intended to do and he has done it ineffectually. That is a condition of the gift which the Court cannot sustain. I agree that the question should be answered in the way proposed by Lord Dundas.

66

LORD JOHNSTON-The question in this case concerns the provision out of residue so far as made for the testator's youngest son James Watson, whether it is absolute or effectively restricted. Mr Watson was married three times and left six children, two by each marriage. James Watson his youngest child was born in 1890, was seven years old when his father executed his settlement, and fourteen when his father died. He attained majority in 1911. He was singled out by his father-evidently it could only be by reason of his comparative youth for somewhat special treatment under his settlement. Mr Watson carried on business a pawnbroker in two different localities in Dundee. He gave two of his elder children the option of each taking over at valuation one of these businesses. Then, fifth, he directed his trustees to convey absolutely to his son William Watson junior, "as a special bequest" to him, a shop, store, and two

as

dwelling-houses in the Hilltown of Dundee. He, sixth, directed his trustees as soon as convenient to convert into money the whole of his other heritable estate and invest the free proceeds in good heritable securities. The seventh, eighth, and ninth purposes contain provisions for maintaining his children during minority and for his widow, the latter of a liferent nature. The tenth purpose contains a provision as a special bequest to him" for James Watson, the youngest son, out of the rents of a particular heritable property. ultimate destination of this subject was for sale after James' death and division among his issue, whom failing among the testator's whole children and the issue of predecessors. The eleventh purpose is the residue clause, the structure of which is involved and awkward.

66

The

By it the testator, on the youngest child of his last marriage attaining majority, directed his trustees to convert, so far as not already done, his whole estates into money "and thereafter (subject always to the discretionary powers vested in my trustees hereinafter mentioned) divide the whole free proceeds thereof equally, share and share alike," among his whole children, with a destination over "in the event of any of my children predeceasing leaving lawful issue" to such issue of their parents' share.

So far the provision presents no difficulty. The difficulty is created by the discretionary powers above referred to. The clause in a confused way deals specially with the case of James Watson the youngest child, and generally with the case of the rest of the children more or less by reference only to what was provided in the case of James. But it creates further confusion by the impression it gives-at present I do not say more-that as regards James its directions were intended to be imperative, as regards the rest of the children discretionary. To quote the clause verbatim would be to waste time. It is necessary to marshall its details in such a way as to present the testator's ideas in less involved, and I hope more intelligible, sequence.

I exclude in the first place any direct reference to James the youngest son. What then the testator does is to confer upon his trustees the most absolute discretionary powers to retain the share or shares of any of his children instead of paying the same over to them. I pause to notice that up to this point there is only expressed a direction to convert and divide, and the direction to divide is immediately, and not remotely or by reference, subjected to the discretionary powers vested in the trustees thereafter mentioned. Nothing is said about payment. The testator then adds-" And my trustees may, in their discretion, only pay over the annual income derived from the share so retained, or may from time to time pay the capital of such share or shares by such instalments and at such times as they may determine." Accordingly the direction to the trustees is in effect to convert and divide and to pay or retain, in their discretion. Had the

provision ended there, I think that there can be no doubt that the case would fall under the rule of Miller's Trustees, 18 R. 301, and that there would have been no good answer to the demand of any child for immediate payment of his or her share. But there must be held to be annexed, though only by reference, to this direction the declaration following "And I hereby specially provide and declare that the shares or share provided to any of my children, or such part thereof as may be retained by my trustees in terms of the powers above conferred, are purely and strictly alimentary, and the same shall not be attachable by debts or deeds of such children nor attachable by diligence of their or his creditors."

It is necessary here, and before proceeding to the special case of James Watson, to determine the effect of these provisions in the event of the trustees resolving, which as it happens they declare in the special case that they see no reason to do, to retain the share of any of the other children. Two things are clear-first, that it is in law impossible to attach an alimentary condition to a capital provision; and, second, that without the interposition of a trust even a life - interest cannot be made alimentary. Now we have here the interposition of a trust. We have also a discretionary power to the trustees to reduce the immediate beneficial interest to a liferent, although there is none the less a vested fee, coupled with a declaration that the provision so far as retained shall be alimentary. That the alimentary condition cannot attach to the fee or capital sum is clear. But the question remains, can a liferent of a capital sum be rendered alimentary, a trust being interposed, where the fee is in the liferenter and not carried past him to his issue or other institutes. I see no good reason why a clearly-expressed intention, the machinery being provided, should not be given effect to so far as is possible merely because the intention was to carry the protection to a further point than is possible at law. I think that it is recognised that a gift of capital to be retained in trust in liferent alimentary, with a power of disposal of the fee, is good to protect the liferent-Adam & Forsyth v. Forsyth Trustees, 6 Macph. 31; Elliot v. Bowhill, 11 Macph. 735-though the power of disposal of the fee may be made available for behoof of creditors. And I do not find that the situation which would be created here, were the trustees to exercise their discretion, is in any different situation. Hence I conclude that so long as the trustees retain the share of any child, that share, as regards the income, is protected and that, as in Chambers' Case, 5 R. (H.L.) 151, no interposition of creditors can prevent them freely exercising their discretion. That in the last-mentioned case the trustees had also a power not merely to reduce the beneficiary to a liferent but to give the fee over to his issue, does not, in my opinion, affect the question. In fact, if Dr Chambers' trustees had chosen they might have retained for an alimentary liferent without affecting the fee by any

Trustees v. Watson

17, 1913

further exercise of their discretionary powers.

But we are concerned specially with James Watson's share of residue. It is with regard to this share, but in words which cover the whole provisions in his favour under the settlement, that the declaration which is imported by reference into the general clause distributing residue occurs,Further, I hereby specially provide and declare that the whole provisions hereunder in favour of the said James Watson are purely and strictly alimentary." The word are' I read as equivalent to 'shall be,' and as indicating the fixed intention of the testator that in all events the provision in favour of James Watson should be alimentary. His intention is clearly effectual as regards the special bequest of the Hilltown property, which is a proper life interest, with a fee to others, the property being retained in trust. Is it ineffectual as regards residue? I think not. For the intention is clearly manifested, and the means are in the trustees' hands to render it effectual. What is discretionary in the case of the remaining children becomes I think by necessary implication imperative in the case of the share of James.

Your Lordships take a different view, and consider that the judgment I would propose bere runs counter to the case of Wilkie's Trustees, 21 R. 199. It is not therefore without grave hesitation that I adhere to the opinion which I had independently formed. But I do not think that the circumstances of Wilkie's case, however weighty the authority, are so far the same as those of the present as to compel to the same conclusion. I am particularly impressed by the close collocation between the direction to divide and its rider the discretionary power to retain. I think the wish of the testator manifest, and that "the rights of the beneficiary must be subordinated to the will of the testators" so far as the law can give effect to that will.

Accordingly I am for answering the first query in the negative, the second in the affirmative, and the third in the affirmative, with the rider "so as not to disappoint his creditors."

The LORD PRESIDENT and LORD MACKENZIE were not present.

The Court answered the first question in the affirmative and the second question in the negative, the third question being superseded.

Counsel for the First Parties-W. L. Mitchell. Agents-Macpherson & Mackay, S.S.C.

Counsel for the Second Parties-Fenton. Agents-Wallace & Begg, W.S.

[Sheriff Court at Dunfermline. JOHNSTONE v. LOCHGELLY MAGISTRATES.

Reparation-Negligence-Safety of Public Unfenced Coup - Injury to Child Liability of Party Using but not Owning Coup-Averments-Relevancy.

A child between two and three years of age was fatally injured by her clothes catching fire when playing near a rubbish heap on which the refuse of a burgh was deposited and on which a fire had been lit. The field in which the rubbish heap was situated was not the property of the magistrates, who, however, were allowed by the owner to deposit rubbish upon it, but was treated by the inhabitants of the burgh as a public park, it being easily accessible to all. In an action of damages by the child's father against the magistrates the pursuer averred that the defenders were in fault in allowing the rubbish heap to remain unfenced; that they were well aware that children were in the habit of playing about the coup and of resorting thereto in search of playthings; that their (the defenders') servants were in the habit of lighting fires there in order to get rid of paper and other inflammable materials; that they (the defenders) were also aware that fires were frequently lit there by ragpickers who frequented the coup; that they were bound to see that fires which had been lit there were properly extinguished; and that owing to their neglect of that duty the pursuer's child was burnt. It was not, however, averred that the fire in question had been lit by anyone for whom they (the defenders) were responsible or that they were aware of its exist

ence.

Held that the pursuer's averments were irrelevant.

Adam Johnstone, miner, Launcherhead, Lochgelly, pursuer, brought an action against the Magistrates of Lochgelly, defenders, for £500 damages in respect of the death of his child, which he alleged was due to the fault or negligence of the defenders in allowing a rubbish heap in which the refuse of the burgh was deposited to remain unfenced and unprotected, and in causing or permitting waste paper to be burnt there.

The pursuer averred-" (Cond. 2) Behind the house where the pursuer resides at Launcherhead aforesaid is a large grass park which slopes gradually downwards towards the railway. The railway is distant about 150 yards from the pursuer's house, which is part of a row of four houses at the west end of Launcherhead. At the lower end of said field, and about 75 yards distant from pursuer's dwelling-house, there

is a large area which the defenders have used for many years, and which they still use, as a coup for the depositing of the refuse brought in by the refuse carts from the lower part of the town of Lochgelly. (Cond. 3) Said grass park is accessible from the south by an entry about 20 feet wide, between two rows of houses in Launcherhead. There is no gate or other obstacle to prevent persons getting access to said park by said entry, and the entry is in fact habitually used by the public as an access to said park, which is treated as a public park. The entry from the south is to the higher part of said grass park, which slopes gently down towards the place where the defenders have the free coup above mentioned. There is no fence of any description to cut off the said coup or refuse depot from the other part of said park, which is all in grass. On the west side of said park, and extending from the pursuer's said dwelling-house alongside of said grass park and coup, and bordering the road leading to the Cartmore Farm, there is a barbed wire fence about 4 feet in height. Said fence is, and has been for at least five years past, in a very bad state of repair, and is so much broken down that it is possible to walk between most of the pairs of paling stobbs without difficulty and without being impeded by the wire of the fence. Further, there was originally a large wooden gate, such as is usual for the entry to a grass field, which opened on to the centre of said coup or refuse depot. Said gate, which would be about 15 feet long, has been for some years and still is lying broken flat on the ground, with the result that between the two paling stobbs which originally formed the support for said gate there is an open entry of about 15 feet. There are many other breaks in said fence between said gate and the dwelling-house occupied by the pursuer, which are at least 5 feet in extent. On the east side of said park and coup or refuse depot there is a plantation of trees, and behind the said trees are the houses fronting the Station Road of Lochgelly. From between two of the said houses there runs a pathway about 5 feet in width, which leads on to and across said grass park, and said footpath has been for many years and still is used regularly by the occupiers of the houses in the Station Road, and other members of the public, to cross from Station Road to the road leading to Cartmore Farm and vice versa. (Cond. 4) Amongst the other refuse which is daily deposited at said coup or refuse depot there is always a large quantity of paper, rags, and other inflammable material got from the various dustbins which are emptied daily by the servants of the defenders or of those for whom they are responsible. In particular, the refuse from various shops in the lower part of the town of Lochgelly is deposited in said coup. As a consequence of the daily deposit of said refuse, the paper and other inflammable material becomes detached and is blown about said park, along said footpath, until it reaches the houses fronting the Station Road of Lochgelly. It is

also apt to be blown up to the houses occupied by the pursuer and others in Launcherhead. In order to obviate the trouble and annoyance to occupiers of said houses it has been the practice of the defenders, or of those for whom they are responsible, and of those whom they permit to use the said coup or refuse depot, to collect the papers and other inflammable material together at any one point on said coup and to burn them. This has in particular been a regular practice by the ragpickers who have frequented said coup for many years. No objection has ever been offered by the defenders or by those for whom they are responsible to the burning of said rubbish, though they knew or could not fail to be made aware of the fact that said papers and other inflammable material were SO burned at irregular intervals. Further, the pursuer believes and avers that the carters employed by the defenders for the collection and depositing of said refuse had and still have instructions to make a fire and burn the papers on the said coup whenever they had or have occasion to think that the papers and other refuse were or are blowing about and causing annoyance to the occupiers of the houses in the Station Road or in Launcherhead. Explained that on 27th March 1912, subsequent to the accident to pursuer's child afterwards condescended on, one of the defenders' carters named Paterson, acting upon instructions from the defenders or of those for whom they are responsible, set fire to some paper and other refuse on said coup and left it burning. Previous to the accident pursuer and his wife were unaware that burning refuse was ever left unattended on said coup. (Cond. 5) Said grass park, which is open to all the occupiers of the houses in Launcherhead and in the Station Road of Lochgelly, is the usual playground for the children of the residenters there, and as there are often articles deposited in said coup which the children make use of for playthings, they are induced to go on to the coup in search of such things as picture-books, pencils, rubbers, and other small articles. This practice of the children in the neighbourhood has been well known to the defenders or their servants for many years, and no objection was ever made by them to the children or other members of the public frequenting said park or going to said coup or refuse depot until after the accident hereinafter condescended on. In particular, the police never attempted to warn the children away from said coup or refuse depot. (Cond. 6) About the middle of the month of December 1911 the children in the neighbourhood began to be specially attracted towards said coup or refuse depot. At that time the merchants in the town had begun to make preparations for their Christmas trade, and there were a large number of picture - books and other playthings deposited in the coup. There were also a large number of gaily-coloured papers and other such material. As a consequence of these articles being deposited there, the children in the neighbourhood

v. Lochgelly

frequented said coup for the purpose of getting playthings from it. (Cond. 7) On Monday, 18th December 1911, and about twelve o'clock forenoon on that day, pursuer's child Isabella, aged two years and nine months, was playing in pursuer's dwelling-house with another child of a like age. At it was a bright day, pursuer's wife gave the children some sweets and told them to go along to the house of her mother (the grandmother of the child Isabella), who resides at the other end of the row of four houses of which the pursuer's house forms one, and close to the opening leading to the south end of said grass park. As the children had often gone to the grandmother's house in similar fashion, the pursuer's wife did not watch to see that they went into her mother's house. After the children left the house pursuer's wife went on with her domestic duties for another quarter of an hour or twenty minutes, and then shut the door of her own house and went along to her mother's house. She had just reached her mother's house and had seen the children were not there, when another playmate of pursuer's child came running up from the coup and shouted that Isa was burning. Pursuer's wife at once ran to the coup, where she discovered her child with most of her clothes in flames. She extinguished the flames and brought the child to the house and sent for the doctor. Dr Dickson arrived in a few minutes, but on examination he said there was no hope of recovery, and the child died about four hours later. (Cond. 8) Said accident occurred through the fault or negligence of the defenders or of those for whom they are responsible. The defenders or their servants were well aware that said coup was not fenced off from the other portion of the grass field of which it is a part on the south and east sides thereof, and they are also aware that the fence which originally bordered said grass park and coup on the west side thereof was in a ruinous condition, and also that the gate which was originally put in said fence for the convenience of their carters in entering said coup was at the time of the accident, and for some years previous thereto, lying broken flat upon the ground. They were also aware that the children of the occupiers of the houses in Launcherhead and in the Station Road were at the time of the accident and for years previous thereto in the habit of going to the coup in search of playthings, and that said park was used as a thoroughfare between Station Road and Cartmore Farm Road. They were also aware that their servants had instructions to burn the papers and other inflammable material found among the refuse when these became so numerous as to cause annoyance to the householders in the district, and they knew or ought to have known that these instructions had been acted upon, and that their servants gathered the papers together and set fire to them as occasion required. They also knew or ought to have known that the ragpickers who frequented the coup had been in the habit of burning papers

and other material on said coup. If the defenders had taken reasonable precautions to avoid the occurrence of an accident, they would have seen that said coup was properly fenced off from the other portion of said park, and also that the children in the neighbourhood were warned away from the coup and made aware that they had no right to play about it or to go there in search of playthings. No notice of any kind was exhibited at said coup. The defenders ought also to have taken precautions to ensure that so long as said coup was not fenced or protected that any fires kindled thereon should have been properly watched while there was any material burning, and they ought to have instructed their servants to see that any fire was properly extinguished before they left the coup. The defenders, however, failed to take all or any of these reasonable precautions, and the accident whereby the pursuer's said child Isabella lost her life was a direct and natural consequence of their negligence to take reasonable precautions for the safety of the children and others whom they knew to be in the habit of playing about the coup and frequenting said park. (Cond. 9) In particular, said accident resulted from the fault or negligence of the defenders or their servants in failing to see that a fire which had been lit on said coup on the morning of 18th December 1911 was properly extinguished by their servants or those whom they permitted to light fires there. The defenders' said carter Paterson was aware that said fire was burning and failed to see that it was extinguished. The death of pursuer's child was caused by her clothes catching fire from burning paper or other material on said coup. If the defenders had taken reasonable precautions such an accident could not have happened. . . .'

The pursuer pleaded, inter alia-"(1) The defenders having been the authors and users of said coup or refuse depot, there was a duty upon them in the circumstances condescended on to take precautions to prevent danger to children and others frequenting said coup or refuse depot, which they negligently failed to take, and the death of pursuer's child having resulted from such failure, all as condescended on, they are liable to the pursuer in damages. (4) The accident whereby the pursuer's child lost her life being a direct result of the fault or negligence of the defenders or of those for whom they are responsible, decree should be granted as craved, with expenses."

The defenders, inter alia, pleaded—“(1) The averments of the pursuer are irrelevant."

On 8th November 1912 the Sheriff-Substitute (UMPHERSTON) dismissed the action as irrelevant.

Note. [After narrating the pursuer's averments] "There are numerous decisions in cases arising out of injuries to young children, and it is difficult to maintain that they are all consistent. Nor do I think it possible to deduce from them a series of propositions which differentiate injuries to