25 January 1945
construction known in Scotland as conditio si sine liberis institutus decesserit. But, before completing a written opinion of my own, I had the advantage of reading that prepared by my noble and learned friend Lord Macmillan, which I gratefully adopt in preference to attempting an independent pronouncement. I move that the appeal be dismissed.
The testatrix was the widow of Thomas Leishman Devlin, who died in 1919. There were two sons and a daughter of the marriage: (1) Robert, who died in 1926, survived by issue, who have no claim under the residuary purpose, (2) Thomas, who died in June 1941, six months before the death of the testatrix, leaving five children, who are the first named respondents in this appeal, and (3) the appellant, Mrs Elizabeth Darney Devlin or Breen. By the residuary purpose of the trust-disposition and settlement, under which her whole estate was conveyed to the trustees, the testatrix directed as follows, "(Fourth) As soon as convenient after my death my trustees shall realise the rest, residue and remainder of my said estates and effects, and shall divide the proceeds thereof equally between my two children the said Elizabeth Darney Devlin or Breen and Thomas Leishman Devlin or the survivor."
The main question in this appeal is whether the conditio si sine liberis applies in favour of the first-named respondents, and thus qualifies the gift over to the appellant on survivance of her brother Thomas. The Lord Ordinary, Lord Robertson, held that the conditio did not apply, but a majority of the Judges of the Second Division held that the conditio did apply, and reversed the Lord Ordinary's decision. Lord Mackay dissented on the ground that there were certain averments of the present appellant, which she was entitled to have remitted to proof; the majority of the Court held that these averments were irrelevant. I propose to deal with this subsidiary question first.
In both Courts below, the present appellant asked for proof of certain averments in condescendence 2 of her claim. These related to (1) the terms of the testatrix's husband's trust-disposition and settlement, with a view to showing that he had made full and adequate provision for the children of the marriage, (2) the terms of prior settlements executed by the testatrix, which were all revoked, and (3) certain statements averred to have been made by the testatrix on several occasions after the death of her son Thomas that in terms of her will her daughter—the appellant—would now receive the whole of the residue of her estate. The Lord Ordinary found it unnecessary to consider the relevancy of these averments. The Second Division unanimously held that the averments under the third head were irrelevant and should not be remitted to probation, and that decision was not challenged before this House. As regards the other two heads, I am of opinion that the view of the majority of the Second Division is correct, and that these averments are irrelevant, and should not be remitted to probation; indeed, I should be prepared to reject them on the ground of incompetency as well.
But, first, it is important to lay down clearly that the application of the conditio is a rule of construction arising in the case of a limited class of wills, and that it is not a presumption of law, rebuttable by evidence, though it may be said to be founded on certain presumptions. It is sufficient to refer to the unanimous opinion of the nine consulted Judges, among whom were included some of the most eminent Judges, in the whole court case of Hall v. Hall . A certain looseness of language is to be found in some of the decisions which is apt to lead to confused thinking, which, with all respect to the learned Judge, would have appeared to have affected the mind and language of Lord Mackay. The only cases to which the learned Judge refers are the cases of M'Lachlan v. Seton's Trustees and Currie's Trustees v. Collier . These appear to have been two instances of ambiguity as to the subject matter of a testamentary bequest or as to the identity of the beneficiaries, of which there can be no question in the present case, and I find it unnecessary to consider whether, even in such cases, it is legitimate to look at prior testamentary writings which have been revoked. No other authority has been cited in support of the appellant's contention. The terms of such revoked writings appear to me to be valueless as evidence, unless one was able to be informed as to the reasons which led to their revocation, and, from that point of view, the oral statements by the testatrix might have been informative, but the appellant—advisedly, as I conceive—no longer maintains the relevancy or competency of these oral statements. The averments as to the husband's settlement are even more irrelevant and incompetent. I therefore agree with the majority of the learned Judges in rejecting these contentions. Although we are here concerned with a bequest to a direct descendant, where there can be no question such as arises in the case of a bequest to a collateral as to whether the testator has placed himself in loco parentis, it does not seem likely that any wider range of enquiry would be legitimate, in view of the statement by Lord President Inglis in Bogie's Trustees v. Christie (at p. 456), namely, "But it is necessary to consider what is meant by placing themselves in loco parentis. It does not mean that the uncle has during his life occupied such a position, or treated his nephews and nieces with that kindness which a parent would show to his children; what is meant is, that in his settlement he has placed himself
in a position like that of a parent towards the legatees—that is to say, that he has made a settlement in their favour similar to what a parent might have been presumed to make." It is difficult in that view to find any warrant for going outside the terms of the operative testamentary writings to examine prior testamentary writings, which are revoked and inoperative; but I reserve any final opinion thereon.
On the main question the Lord Ordinary, while stating that in its general features the present case is a typical case for the application of the conditio, ultimately formed the opinion that three special features, by their cumulative effect, took the case out of the general rule. These three features were (a) that the bequest was not to children as a class, but to two children nominatim,(b) the clause of survivorship, and (c) that, from the terms of the third purpose of the settlement, it was plain that in making her settlement the testatrix in fact bore in mind that her son Thomas might predecease her. The whole matter, including the grounds of the Lord Ordinary's opinion, has been submitted to detailed examination and criticism in the able opinion of the Lord Justice-Clerk, which relieves me from a detailed examination of the cases. While the learned Judge has loosely referred to the rebuttal of a presumption in one or two passages, it is clear that he regards the application of the conditio as a rule of construction, the application of which may be excluded on consideration of the terms of the settlement, and I agree with the whole opinion of the learned Judge.
In addition to the three special features founded on by the Lord Ordinary, Mr Clyde, on behalf of the appellant, founded on four other features of the settlement, viz., (4) that the residue was not divided among the three stirpes of the descendants of the testatrix, (5) the legacies in the third purpose to the children of her deceased son Robert, with forfeiture in the event of abandonment of the Roman Catholic faith, (6) the admitted knowledge of the testatrix, before her death, of the predecease of her son Thomas, leaving children, and (7) that, if the conditio is held to be applicable, the appellant would obtain a substantially larger sum by electing to take her legitim. I may dispose of the last point at once, as in my opinion it is clearly irrelevant. As regards the remaining six features, I agree with the opinion of the majority of the Second Division that none of them, taken by itself, affords any ground for exclusion of the conditio, and that, taken all together, they equally afford no such ground.
Lord M'Laren states in Wills and Succession (3rd ed.), vol. I, page 711, "Provisions to children or grandchildren are presumed to spring from the pietas paterna, and are supposed to be intended for the benefit of the grantee's family. Equity accordingly implies in such provisions an institution of descendants, whether the class of legatees includes the whole of the testator's existing issue or selected individuals." That Lord M'Laren did not mean that it was essential to have a class of legatees is made clear in the next paragraph, which begins—"Bequests to individual children of the testator are held to be of the nature of family provisions." He refers to the decision of this House in Dixon v. Dixon, to which I will refer later. I am quite unable to accept the distinction sought to be drawn by Lord Mackay between the pietas paterna and the pietas materna; it should be remembered that the pietas paterna does not merely rest on sentimental affection, but on natural obligation, which the law recognises and will enforce voce legitim if the parent fails to discharge the obligation, and, as regards natural obligation, it lies as fully on the mother as on the father. It has never, so far as I am aware, been suggested that there was any distinction, though there must have been a number of cases of bequests by a maternal ascendant, as, e.g., Grant's Trustees v. Grant . The case of Dixon v. Dixon recognises as established law that, where there is a gift over on failure of the institute to take, the gift over is to be read as qualified by the conditio—per Cottenham, L.C., at page 19. It decided that the conditio applied, although the bequest of the residue was to the eldest son nominatim, other pecuniary bequests to the other children being of different amounts and being, in some cases, qualified by a destination to heirs of the body. In citing this decision, the learned editor of the 1871 edition of Erskine's Institute rightly stated (III. viii, 46, note (a)), "It is immaterial to its application, in the case of descendants, whether the predeceasing beneficiary was called individually, or as one of a class." It was further held that the testator's knowledge of his eldest son's predecease leaving children did not per se constitute an exception to the rule; on this point the Lord Chancellor stated (at p. 20), "It would be strange that the father of the child should not know the state of his own family: that may happen from the birth of a posthumous child, or from other circumstances which rarely can occur; but, as soon as the principle is established, viz. that there is a presumption of law in favour of the issue of a child, it naturally follows that the necessity of introducing the words is to a certain degree taken away; and it would be very strange indeed, when the law under these circumstances gives the provision to the issue of the child, if the father were presumed not to have intended that which the principle of the law presumes for him." In referring to the provision made for the testator's married daughter, in which case the children of that daughter were provided for, the Lord Chancellor says (at p. 20), "With regard to the daughter, there is a certain sum of money given to her, and provision is made for her, and her children after her in the event of her death; with regard to the son, he makes him general heir of his real and personal estate—a difference of disposition which may well explain why the testator has varied the terms of the provision for the one and the other." This applies in the present case to the argument founded on the provision for Robert's children in the third purpose, with even greater force, as Robert had predeceased the date of the will and was not an institute. Those provisions were subject to the special forfeiture clause, in the
absence of which it might well have been maintained that the conditio applied in the case of any child of Robert who predeceased the period of vesting, leaving issue. As regards the appellant's argument founded on the provision—also called the third—with regard to possible claims for a debt alleged to be due by her son Thomas to her late husband, which the testatrix states not to be due, which might be made against Thomas, or, if he should predecease her, against his executors, this would also appear to be fully covered by the above passages from the speech of the Lord Chancellor. Indeed, this may be rather a double-edged weapon for the appellant, for it has no reference to Thomas's children, from which it may be inferred that the testatrix was content with that which the rule of law would provide, as suggested by the Lord Chancellor. I may add that the consistency of a survivorship clause with the application of the conditio had been settled more than 100 years before Dixon's case in Magistrates of Montrose v. Robertson, in which also the knowledge of the predecease of the child leaving a grandchild was unsuccessfully founded upon. Indeed it was argued, as appears from the speech of the Lord Chancellor, that the absence of a gift over was a reason for exclusion of the conditio. In my opinion, the law as it stood after the decision of this House in 1841 in Dixon's case was sufficient to dispose of all the appellant's arguments, and no subsequent authority affected that result.
I am therefore of opinion that this case remains as a typical one for the application of the conditio. I am prepared to adopt the proposition of the learned Solicitor-General that the rule, where applicable, can only be displaced by a contrary intention expressed or clearly implied in the deed itself or in other operative testamentary writings. In my opinion, no such contrary intention is to be found. I will only add that, on the terms of this residuary clause, it seems clear to me that the conditio must either be applied in the case of both residuary legatees or rejected in the case of both, and much of the appellant's argument cannot be related to the appellant's residuary bequest. In conclusion, I desire to add a word as to the case of Crichton's Trustee v. Howat's Tutor, in which two sisters by inter vivos deed conveyed certain heritable subjects in Dumfries, of which they were then pro indiviso proprietors, to themselves and another sister in liferent, and to their only three nieces, Julia, Dorothea and Katharine, nominatim, "and the survivors or survivor of them, in fee." On this conveyance infeftment followed in favour of the whole disponees for their respective rights of liferent and fee. The question was whether, on the death of Dorothea, who died intestate leaving one son, her share passed to the two surviving fiars, or passed to her son, in virtue of the conditio. The decision was clearly sound, and it is clear to me that Lord Rutherfurd Clark, who was well versed in conveyancing law, took the view that the conditio had nothing to do with such a heritable destination. As regards the Lord Ordinary and the other two learned
Judges of the Second Division, I am at a loss to understand how they came to discuss the conditio at all in relation to a case where the institute has actually taken, and there is no room left for a conditional institution of the institute's issue, which can only take effect on failure of the institute to take. It was argued for the pursuer that there was here no room for the application of the conditio, for the immediate beneficiary, Mrs Howat, herself survived and took—an unanswerable argument.
I am therefore of opinion that the interlocutor appealed against was right, and that the appeal should be dismissed.
It is unnecessary in the present case to consider the developments which have extended the application of the rule, for the bequest which is before your Lordships is clearly within its original ambit. Mrs Devlin, the testatrix, by her trust-disposition and settlement directed her trustees as soon as convenient after her death to realise the residue of her estate and divide the proceeds equally between her two children Elizabeth and Thomas or the survivor. The son Thomas predeceased her by some six months leaving five children. The one- half share of the residue which Thomas would have taken had he survived is claimed by Elizabeth as the surviving child, founding on the verbal terms of the bequest, and by the children of Thomas in virtue of the conditio. All the circumstances favour the application of the conditio. The bequest is by a parent in favour of a child, it is part of a universal settlement of the whole estate of the testatrix, it consists of a share of residue, not of a specific sum, and it is obviously of the nature of a family provision, for the residue is given equally between the only two children of the testatrix who were alive when she made her will. The fact that there is a destination to the survivor is no obstacle to the application of the conditio, as I have already mentioned, for it has long been established that neither a clause of survivorship nor a destination-over excludes the operation of the rule. That the names of the two children are given by the testatrix is also immaterial, for the bequest is to her children as such, and the addition of their names does not render it a bequest to two individuals irrespective of their relationship to her. That also is well settled.
But, says the appellant, all rules for the interpretation of wills are justified only as aids to ascertaining the intention of the testator, and are subject to the paramount principle that it is the intention of the testator which is to be sought and fulfilled. A rule which in given circumstances attributes a certain effect to a particular form of bequest does so because in employing that form the testator is assumed to have intended the effect which the rule gives to it. If therefore it can be shown from his will that the testator has expressly or by clear implication excluded the operation of the rule, then the rule must give way, for to apply it would be to defeat, not to effectuate, the testator's intention.
Invoking this principle, the appellant points to the facts that in an earlier clause of the will the testatrix bequeaths a legacy of £3,000 to each of her grandchildren, the children of her deceased son Robert, and that in another clause she gives directions, with regard to a debt alleged, contrary to her knowledge, to be due by her son Thomas to her deceased husband's estate, that, if any claim is made for repayment of this debt against her son Thomas "or his executors if he should predecease me," her trustees are to pay the debt out of her estate. Here, it is said, is evidence that the testatrix had had experience of a child predeceasing her leaving issue and in that case had made provision for that child's issue; and also that she had expressly contemplated the possibility of her son Thomas predeceasing her, as he did; yet she nevertheless refrained from making any provision for the issue of her two then living children, should either of them predecease. From this it is argued that the assumption on which the conditio is based, namely, that the possibility of a child predeceasing leaving issue has been unintentionally overlooked is excluded, for the testatrix had in mind both the claims of grandchildren and the possibility of Thomas predeceasing her. I am not impressed by this argument. No one would dispute that the testatrix must have known that in the course of nature one or other or both of her two surviving children might die before her; indeed she provided that, if one died, the whole residue should go to the other. What she overlooked was not that her children might die before her but that they might die before her leaving issue. I do not find in her will anything sufficiently significant to demonstrate that she envisaged the possibility of her son Thomas dying before her leaving children and deliberately intended to make no provision in that event for those grandchildren.
The appellant, if the considerations which she has adduced from the terms of the will itself fail her, seeks to be allowed to derive evidence from external sources to show what the testatrix really intended by the residuary clause in her will. In her condescendence she refers to two previous revoked wills of the testatrix and to the will of the husband of the testatrix, who predeceased her. From these she maintains that inferences favourable to her contention can and ought to be drawn. I am of opinion that such evidence is for the present purpose inadmissible. To admit it would not only be unprecedented and against authority but would do no more than lead to unhelpful conjecture.
As a last resort the appellant makes an averment in which she alleges that the testatrix "on several occasions" after the death of her son Thomas said that the whole residue would go to the appellant. The irrelevancy of such an allegation is too obvious to need argument, and the appellant's counsel at your Lordships' bar very properly abandoned the point.
The appeal should in my opinion be dismissed.
The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.