Raper v Murton and Others (Civil Case No. 92 of 1938 O.S.)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court held that the testator's daughters took as joint tenants, not tenants in common. The son's trust of the residuary estate was subject to the wife's and daughters' income trusts. The son would become sole trustee at age twenty-five. The son's beneficial interests in both the residuary estate capital and the life insurance proceeds were vested interests from the testator's death, to which he became entitled at age twenty-one, subject to divestment if he failed to reach that age.

Outcome

Declarations granted as prayed; originating summons stood over generally with liberty to apply

Facts

Ivo Murray Murton died leaving a will disposing of his residuary estate to trustees for the benefit of his wife Elizabeth, his son Murray (a minor), and his daughters Gillian and Judith (both minors). Clause 4 of the will provided for the payment of one-half of the net annual income to the wife while unmarried, with that half to go to the daughters upon the wife's death or remarriage. The residuary estate was to be held in trust for the son until he attained twenty-five, with provision for his maintenance and education. Clause 5 dealt with the proceeds of a life insurance policy to be held in trust for the son until age twenty-five, with power for the son to dispose of it by will upon attaining twenty-one. The executor and trustee, Frederick Raper, brought an originating summons seeking declarations as to the construction and effect of these clauses.

Issues

1. Whether the trust of one-half of the net annual income of the residuary estate in favour of the third defendants (the daughters) would, after the death of either of them, enure wholly for the benefit of the other or become a trust of one-quarter only for such other — i.e. whether they took as joint tenants or tenants in common.
2. Whether the trust of the residuary estate and income thereof for the second defendant (the son) until attaining the age of twenty-five is subject to the trusts of one-half of the net annual income in favour of the first defendant (the wife) and third defendants (the daughters).
3. Whether the combined effect of clauses 4(f) and 4(g) is to constitute the second defendant as sole trustee of the residuary estate with the consequent obligation on the plaintiff to transfer the same to the second defendant when he attains the age of twenty-five years.
4. Whether the beneficial interest of the second defendant in the capital of the residuary estate vests in him before his attaining the age of twenty-five years, and if so, at what time and age.
5. Whether the beneficial interest of the second defendant in the proceeds of the life insurance policy vests in him before his attaining the age of twenty-five years, and if so, at what time and age.

Orders

• Declared that on the true construction of clause 4(d) the third defendants took as joint tenants and not as tenants in common.
• Declared that the trust of the residuary estate and income thereof in favour of the second defendant as declared by clause 4 of the will is subject to the trusts of one moiety of the net annual income of the residuary estate as declared in clause 4(d) in favour of the first and third defendants.
• Declared that the effect of subclauses (f) and (g) of clause 4 is to constitute the second defendant as sole trustee of the residuary estate if and when he shall attain the age of twenty-five years with the consequent obligation on the plaintiff to transfer the same to the second defendant as such trustee if and when the second defendant attains the age of twenty-five years.
• Declared that the beneficial interest of the second defendant in the capital of the residuary estate under clause 4(f) and (g) is a vested interest vesting from the date of the testator's death subject to being divested as provided for in clause 4(h) if the second defendant fails to attain the age of twenty-one years.
• Declared that the beneficial interest of the second defendant under clause 5 in the proceeds of the life assurance policy is a vested interest vesting from the date of the testator's death to which the second defendant is entitled on his reaching the age of twenty-one years.
• Costs as between solicitors and client of the parties to be payable out of the estate.
• Originating summons to stand over generally with liberty to apply.

Rules and key headnotes

Legislation cited (1)

• Trustee Ordinance 1929

Cases cited (7)

• In Re Ussher, Foster v Ussher [1922] 2 Ch 321
• Boreston's Case, 3 Co. Rep. 16
• Hanson v. Graham, 6 Ves. 239
• Phipps v. Ackers, 9 C.I. & F. 583
• Whitter v. Bremridge, L.R. 2 Eq. 736
• Fox v. Fox (1875) L.R.19 Eq. 286, 290
• In Re Williams [1907] 1 Ch 180

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