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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Greig v Malcolm [1835] CA 13_607 (5 March 1835)
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Cite as: [1835] CA 13_607
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SCOTTISH_Shaw_Court_of_Session
Page: 607↓
v.
Subject_Succession—Executor—Conditio Si Sinc Liberis—Stat. 4 Geo. IV. c. 58.—
1. Where it appears that a testator has not overlooked the contingency of issue being left by one niece predeceasing, out of several, the conditio si sine liberis does not apply. 2. The share of a legacy which was conveyed in favour of a conditional institute, prior to 4 Geo. IV. c. 98, held to vest without confirmation, and to transmit to the institute's next of kin. 3. Held by the Lord Ordinary, and acquiesced in, that the statute 4 Geo. IV. c. 98, in regard to a succession which had opened prior to that statute, has no retrospective effect, though the competition for the office of executor arose subsequently to the statute.
The late Peter Duff, merchant in Perth, who died in 1805, by his deed of settlement directed his trustees “to satisfy and pay to the said James Duff, my brother-german, £750 sterling, in liferent, during all the days of his lifetime, for his liferent use of the annual rent thereof only, and the fee thereof as follows: To Margaret, James, and Alexander Duff, children of the said James Duff, £150 sterling each, and to Thomas, Henrietta, and Jean Duff, also his children, £100 each, and their heirs, executors, or assignees, and failing any of them before they attain the age of twenty-one years complete, or be lawfully married, the deceaser's share to fall and belong to the survivor, or equally to the survivors of them, and to the survivor's heirs, executors, or assignees in fee.” He was predeceased by three of James Duff's family, viz. Jean, who, died first, leaving a daughter, afterwards Mrs Young; Alexander, who died in minority, and without issue; and Henrietta, who died also without issue, but after reaching majority. Of the three remaining children who survived the truster, Thomas died in 1812 without issue; James, junior, died in 1817, leaving Margaret Duff, and others, his children; and Mrs Greig was still alive.
The trustees raised a multiplepoinding before the Sheriff of Perthshire; and claims were made by Mrs Young, Margaret Duff and others, the children of James, junior, and Mrs Greig. The Sheriff found that Mrs Greig was entitled to her own legacy of £150; that the legacies to James Duff, junior, and to Jean Duff, did not lapse by their predeceasing the truster, as they were conceived in favour of executors, and therefore Margaret Duff and others, the children of James, junior, and Mrs Young, the daughter of Jean, were entitled to these legacies. In regard to the legacies to Alexander, Thomas, and Henrietta, the Sheriff found that the parties entitled to the character of their respective executors had right to these legacies.
A competition then arose before the commissary of Perth between the same claimants, who raised edicts to be confirmed executors to Alexander, Thomas, and Henrietta. In regard to the share of Alexander, who died
Advocations were brought, hinc inde, of the proceedings in the multiplepoinding, and also in the edicts; and the processes were conjoined.
In competing for the office of executor—
Mrs Greig pleaded, that, as she had survived all her brothers and sisters, she was next of kin to such of them as died without issue; and she was preferable to any of the nephews and nieces, in respect that they died before the 4 Geo. IV. c. 98. Prior to the date of that statute, she had a right to be confirmed sole executor; and the statute had not the retrospective effect of taking away that right, and enabling others to be conjoined with her.
Margaret Duff and Others, children of James, junior, pleaded, that, as their father had survived all his brothers and sisters, except Mrs Greig, and she had not obtained confirmation to any of them prior to 4 Geo. IV. c. 98, his right transmitted to his children by force of that statute, and they were entitled to be conjoined with Mrs Greig as executors.
Mrs Young, as representing Jean Duff, rested her claim on the implied conditio si sine liberis, as more fully explained in her pleadings in the multiplepoinding.
In competing in the multiplepoinding, as between Mrs Young on the one hand, and Mrs Greig, and the children of James, junior, on the other—
Mrs Young pleaded—she was entitled to the legacy of £100 bequeathed to her mother, in virtue of the conditio si sine liberis, the true import of which was, that, in any family provision, the issue of a child takes what such child would have taken if alive at the date of the distribution.
1 On the same principle, she was entitled to a share of the legacy in favour of Alexander, Henrietta, and Thomas, because any devolution of their legacies upon surviving brothers and sisters was under the above implied condition;
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1 Mag. of Montrose, Nov. 26, 1788 (6398); Wood, June 26, 1789 (13043); Roughhead, Feb. 14, 1794 (6403); Wallace, Jan, 28, 1807 (F. C.); Christie, July 5, 1822 (ante, I. 543, or 498, new edit.)
Answered by Mrs Greig, and the children of James, junior—
The legacy to Jean Duff fell to Mrs Young, because it was conceived in favour of executors; and for no other reason whatever. The claim on the principle, of the conditio si sine liberis, was wholly inept. The foundation of such claim necessarily assumed that the testator had overlooked the possible existence of issue, and that, but for this oversight, he would have provided the parent's share in favour of the issue. But, in this case, the testator had such issue expressly in his view, and had made a provision for them, inasmuch as the special legacy to each child was not to lapse by predecease, but to go to the child's executors, who were, of course, the issue. The testator had made no farther provision for the issue; but as this was done ex proposito, 1 or, at least, could not be assumed to be by oversight, there was no room for letting in the conditio si sine liberis.
As between Mrs Greig, and the children of James, junior,—
Mrs Greig pleaded *—Being the only surviving child of the testator, and next of kin of all her brothers and sisters who had died without issue, she was entitled to the whole executry of each, as no confirmation had been expede to any of them. They had all died prior to 4 Geo. IV. c. 98, so that, prior to that statute, she possessed the exclusive right to their executry. The statute might affect rights emerging subsequently to its date, but not such rights as had emerged prior thereto, and which were patrimonial interests, not to be inverted by the retrospective operation of any statute.
The children of James, junior, pleaded—The shares of Alexander and Henrietta were carried to the three surviving children, Thomas, Mrs Greig, and James, junior, the claimants' father, as conditional institutes, by force of the settlement.
2 It did not require confirmation to vest the right
3 so carried to James, junior; and, on his death, they were not only entitled to the sum of £150, originally destined to him (which was not disputed), but also to one-third of the shares of the legacies of Alexander and Henrietta, vested in him as conditional institute. But, farther, at the death of Thomas he was survived by Mrs Greig and James, junior, who might then have confirmed as next of kin. Neither of them did this, and, before the office of executor was sought at all, the statute 4 Geo. IV. c. 98, had passed, which regulated every after competition, and in virtue of which the claimant's right, as coming in place of their
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1 Eral of Lauderdale, May 19, 1830 (ante, VIII. 771). * She also claimed her own legacy of £150, which was not disputed.
2 Brown, June 2, 1792 (14863); Dunlop, June 2, 1812 (F. C.); 2 Stair (More's Ed.) Notes. p. 344.
3 Ersk. 9, 9; Inglis, July 16, 1760 (8084); 2 Stair (More's Ed.), p. 344.
The Lord Ordinary, “in the first place, in the advocations of the proceedings, arising out of the edicts raised by the advocator, Mrs Greig, before the commissary of the commissar at Perth, recals the several interlocutors of the commissary complained of by the said Mrs Greig; finds her entitled to be decerned executrix dative, qua nearest of kin to her deceased brothers, Alexander and Thomas Duff, and to be given in, admitted, and confirmed generally in, and to the whole moveable estate and effects which pertained or belonged, and were resting-owing to them at the time of their decease; remits these several cases back to the commissary, with instructions to decern and confirm the said Mrs Greig executrix dative accordingly, in common form, and to repel the competing edicts and objections of the respondents, Margaret Duff and others, children of the deceased James Duff, junior, farmer at Loak, and of Mrs Mary Young or Malcolm, spouse of David Malcolm, writer in Perth, and her said husband, for his interest, but subject always to the findings herein after expressed, regarding the bequests in favour of Alexander and Henrietta Duff, contained in the deed of settlement of the late Peter Duff; finds the said Mrs Greig entitled to the expenses incurred to her, occasioned by the appearance and opposition of the said other parties, both in this and in the Inferior Court, &c. And in the second place, in the advocation of the process of multiplepoinding, regarding the bequests contained in the deed of settlement of the late Peter Duff, raised at the instance of the trustees of the said Peter Duff, advocates the same; and, first, with regard to the share destined to the said James Duff, junior, finds, That the same belong to the claimants, the said Margaret Duff and others, his children, and ranks and prefers them accordingly, and decerns. Second, With regard to the shares destined to (Alexander Duff and
*) Henrietta Duff, Finds it admitted, that Alexander died in minority, and predeceased the testator; and that Henrietta, although she survived majority, also predeceased the testator; finds, therefore, that their shares did not vest in them, but were carried to, and vested in their surviving brothers and sisters, who out-lived the testator, and were major, in equal portions, viz. James Duff, junior, Thomas Duff, and Mrs Greig, in virtue of the conditional institution contained in that deed; finds it admitted, that Jean Duff, the mother of the claimant, Mrs Malcolm, predeceased both Alexander and Henrietta Duff; finds that the conditio si sine liberis decesserit, pleaded by Mrs Malcolm and husband, in reference to the shares destined to Alexander Duff and Henrietta Duff, does not apply, and therefore repels their claim; finds the claimant, Margaret Duff, and others, children of the said James Duff, junior, entitled to the third of the shares of Alexander
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* Words obviously omitted, and inserted by reporters.
Mrs Young reclaimed.
The Court adhered.
Solicitors: D. Fisher, S. S. C.— D. Gray, S. S. C.— W. Murray, W. S.—Agents.
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* “ Note.—Parties were originally at issue on various points; but after mutual explanations at the debate, one only remained for decision—Whether Mrs Malcolm was entitled to a share of the succession of Alexander and Henrietta, in right of her mother who died before them?
“When legacies are left to certain individuals as institutes, and they are mutually substituted to each other, without mention of their heirs or executors, it is presumed, that the testator had not contemplated the event of the legatees leaving issue, and, therefore, if that event takes place, the issue are preferred to the substitutes on the ground of an implied condition in the substitution, si institutus sine liberis decesserit. This doctrine, which we have borrowed from the Roman law, proceeds entirely on the presumption that the testator, having overlooked or forgotten the contingency of the institute having children, has left children unprovided, if they come into existence. But this presumption may be defeated by opposite presumptions or evidence; and there can be no stronger evidence to that effect than a clause in the settlement, by which the testator does make a provision for the issue of predeceasing legatees, because it incontestibly shows that he had them in view when he made the substitution. That is the case here. The legacies or bequests to the children of James Duff, are not left to each of them as institutes, and to the survivors as substitutes, but to each and to his or her heirs and executors; consequently Mrs Malcolm, without dispute, succeeds to the share of her mother Jean Duff, and is thus provided for, not by virtue of an implied condition, but by the express will of the testator. In these circumstances, she is not entitled to claim a share of Alexander Duff's or Henrietta Duff's succession, to whom the surviving children were substituted, the testator, at the time he made the substitution, having clearly had her contingent interest in view.
“There is thus an obvious distinction between the present case and that of Roughead, on which Mrs Malcolm chiefly relics. The provision there was granted to Archibald Roughead, his heirs and executors, with a substitution, if Archibald died in minority without lawful children, to his five sisters. Archibald died (without issue) in minority, and Jean, his sister, having predeceased him, her son William was found entitled to his mother's share of Archibald's succession. If he had not, he would have got nothing by his mother's death, and have been left, by the testator, totally unprovided for, while his four aunts took the whole succession of their brother. But if Archibald and his five Sisters had been institutes, with a clause in favour of their heirs and executors, William would have got his mother's share as her executor; and therefore he would have got no part of Archibald's succession. It is the omission of the bequest to heirs and executors which makes room for the application of the condition si sine liberis. Accordingly William's claim is expressly founded on that distinction. He pleads Roughead v. Rannie, Mor. 6403, Feb. 14, 1794. ‘Besides it is a general maxim of law, that when a father grants provisions to his children without mentioning their heirs, and appoints substitutes to them, the substitution takes place only si instituti sine liberis decesserint.’ But the mention of heirs is the circumstance which makes the difference between the case of Roughead and this case.”