Scottish Court of Session Decisions

In August, 1831, the late John Keater, then 75 years of age, executed a trust-settlement of his whole property. He was married, but had no family, his nearest relations being the descendants of three sisters deceased. His eldest sister Margaret, who had been married to one Hamilton, left four children, viz. John, who had two daughters, Mary and Janet,—James,—Thomas, who had one son of the same name,—and Robert. His second sister Isobel (Mrs M'Lellan), left one son, John M'Lellan. His youngest sister, Elizabeth (Mrs Bennet), left four children, viz. John,—Elizabeth (who was married to one Easton, and had five children),—William,—and Robert.

This being the state of the family at the date of the settlement, Keater made over his whole heritable and moveable property to Mary Duncan, or Keater, his wife, and certain other trustees (who did not accept) for the following purposes:—1st, To provide an annuity for his widow, which was to be restricted in the event of her second marriage. 2d, “I hereby appoint my said trustees, upon the death of the said Mary Duncan, to convey and make over the foresaid lands of Auldyards to John Bennet, eldest son of my sister Elizabeth Keater, in liferent, and to his lawful child or children, equally among them, share and share alike, in fee. 3d, I appoint the interest of all my heritable bonds, and the rents or income of all my other lands or heritages, to be paid by my said trustees to Thomas Hamilton, son of my eldest sister Margaret Keater, Robert Hamilton, also son of the said Margaret Keater, Elizabeth Bennet, daughter of my sister Elizabeth Keater, and William Bennet, son of my said sister Elizabeth, in the following shares or proportions, viz. To the said Thomas Hamilton, Robert Hamilton, and Elizabeth Bennet, two seventh shares each, and to the said William Bennet one seventh share; and according to the same division of shares, I appoint my said trustees, upon the death or second marriage of the said Mary Duncan, to pay over and divide, or convey to and among the said Thomas Hamilton, Robert Hamilton, Elizabeth Bennet, and William Bennet, the principal sum in the said Peter Sawers' bond, and the whole other heritable bonds and heritages hereby conveyed, except the said lands of Auldyards, which I have destined otherways, as above expressed. 4th, I appoint my said trustees to pay to James Hamilton, eldest son of the said Margaret Keater, a free liferent annuity of £24 sterling, payable at the same terms as that payable to my wife; and to John M'Lellan, only child of my second sister Isobel Keater, a free liferent annuity of 6s. weekly; and these during all the days of the said James Hamilton and John M'Lellan their respective lives.” 5th, To convey the sum in a certain heritable bond to two parties, one the child of a cousin of the testator, and the other a stranger, “equally between them and their heirs.” Lastly, To pay and divide the residue of the moveable estate “to and among the following persons, whom I hereby appoint to be my sole residuary legatees, in five equal shares, viz. the said Robert Hamilton, Thomas Hamilton, John Bennet, Elizabeth Bennet, and William Bennet, and that from time to time, and as soon as my trustees can conveniently recover the same.”

Of the legatees under this settlement Thomas Hamilton, aged 45, and Elizabeth Bennet, or Easton, aged 31, leaving respectively the children above-mentioned, predeceased the testator, who died in 1833. On this event, the question arose, whether Thomas Hamilton's son and the five children of Mrs Easton had or had not right to the shares of the succession provided to their parents. To try this question, Keater's widow, as trustee, brought a process of multiplepoinding as to the shares in dispute, viz. four seventh shares of the residue of the heritage, and two fifth shares of the residue of the moveable property provided (in the proportion of two sevenths and one fifth to each) to the deceased parties. In this process claims were made as follows:—

1. Mary and Janet Hamilton, John M'Lellan, and John Bennet, as the testator's heirs-at-law claimed to be preferred to the whole of the heritable property provided to the predeceasing legatees. James and Robert Hamilton, William and Robert Bennet, as next of kin to the testator, claimed to be preferred to the whole shares of the moveable estate provided to Thomas Hamilton and Elizabeth Easton. And these claimants pleaded,—That in consequence of the predecease of Thomas Hamilton and Elizabeth Easton, their legacies lapsed, and not being otherwise disposed of by the settlement were now distributable among the claimants, as Keater's heirs-at-law and next of kin.

2. Thomas Hamilton junior and the Eastons claimed to be preferred to the fund in the proportions destined to their parents respectively, pleading—That they were entitled, on the principle both of representation of their parents and of the implied condition si sine liberis decesserit, to the shares so destined.

The Lord Ordinary pronounced the following interlocutor, adding the note subjoined: ^*—“Finds, 1mo, That the late John Keater, the truster, having no children, nor any collateral relations nearer than the children of three deceased sisters, did execute a general family settlement in the form of a trust, whereby, after leaving certain special legacies and annuities, and providing certain heritable subjects to his widow and certain of the said children, and to two other more distant relations, he did destine and provide the rest and residue of his whole heritage, per aversionem, and according to a division into seventh parts, to four of the said children of his said deceased sisters; and did farther provide the whole residue and remainder of his personal estate to the said four children, and to one other child of a sister not provided to any part of the heritage; declaring the said five children of his said sisters to be his sole residuary legatees, and providing to each of them one equal fifth share of the said general residue of his personal estate: Finds, 2do, That, in these circumstances, the said general provisions of heritage and moveables respectively being made to persons standing in the nearest existing relation to the testator, and to whom he was in loco parentis, and being made in such form as to embrace his whole property and exhaust his succession, are to be considered as having been made in consequence of such relationship, and out of natural duty and affection; and that the circumstances of two persons in the same degree of relation having been left without any provision in this settlement, and the shares of those mentioned in it being unequal, are not sufficient to exclude this construction, or to reduce the relations so called to the residuary succession, to the condition of mere stranger legatees; and therefore finds, 3tio, That the same presumption of intention from natural affection, or conjectura pietatis, which raises the implied condition si sine liberis decesserit in cases of express substitution, is applicable to the circumstances of this case, and entitles the children of any of the five persons provided to the free moveable and heritable succession of the truster, who may have died before him, the said truster, now to take the shares so provided to their respective parents, in preference to the nearest of kin, or heirs-at-law of the said truster ab intestato; and, for these reasons, ranks and prefers the claimant Thomas Hamilton, only surviving child of Thomas Hamilton deceased, to that part of the fund in medio which consists of the two one-seventh shares of the truster's heritable property not specially conveyed, and to the one-fifth share of the free residue of the said truster's personal or moveable estate, which were provided by the said settlement to the deceased father of the said claimant; and, in like manner, ranks and prefers the claimants James Easton, Thomas Easton, John Easton, William Easton, and Eliza Easton, the only surviving children of Elizabeth Bennet or Easton deceased, jointly and equally among them, to that other part of the fund in medio which consists of the two one-seventh shares of the said truster's free heritage, and to the one-fifth share of the free residue of his moveables, provided by his said settlement to the deceased mother of the said claimants of the name of Easton; and decerns in the ranking and preference accordingly; but finds no expenses due.”

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^* “There was a large citation of authorities at the bar, the whole of which it would not perhaps be easy to reduce to one strict principle. But the nearest of kin did not dispute that the question truly depended on what should be presumed to have been the will and intention of the truster; and, in this view, it is rather awkward for their argument, that the admitted result of it would be to bring in for a large share of his succession persons whom, they themselves have contended, he had knowingly and intentionally excluded, and left out of his general settlement. There can be no doubt, the Lord Ordinary thinks, that it was a general family settlement, embracing, and intended to embrace, the universitas of his property, and not a mere testament, or list of particular bequests; and that the express provision of the general mass of his whole heritage and moveables (divided into fifths and sevenths, and with no other specification), after payment of debts and particular legacies to his nephews and nieces, put them into a situation in no way parallel to that of mere stranger legatees.

“In fact, there were only two points seriously made on the other side,—one, that the presumption of pietas paterna only applied in favour of direct descendants of the testator, and not of collaterals; the other, that, at all events, it could not be so extended, unless the relations whose children claimed the benefit of it had themselves been called as a class of relations, and not as individuals; but the Lord Ordinary cannot give his assent to either of these propositions.

“The first seemed to be sufficiently negatived by the cases of Mackenzie and Holt, 2d February, 1781 (Morr. 6601), Wallace, 28th January, 1807 (Morr. App. No. 6, voce Clause), and Christie, 5th July, 1822 (F. C.), which last was a case in several points a fortiori to the present; Lord Balgray, who dissented from the judgment, expressly stating that he approved of the case of Wallace upon the ground, that there was a complete family settlement, and that an uncle was rightly considered as in loco parentis to his nephew and his nephew's children.

“To the second objection, that, if collateral relations are called to a succession, the right will only go to their issue (in the event of their predecease), if they are so called under a generic appellation, denoting their relationship, and fixing it accordingly as the main cause of their preference, the Lord Ordinary must observe, that this seems to rest the proof of their having been preferred on account of their relationship—which he admits to be essential to their case—on far too narrow a basis; and the only thing really material is, whether it is sufficiently certain that the settlement is truly a family settlement, and his general succession given to the testator's nearest relations, not because they happen to be individually his favourites, but because of such relationship. When this is the case, it is conceived to be of no consequence whatever whether they are called individually, or by a general description; and whether all the individuals who might have fallen under that description are called, or only with certain exceptions. If all the nephews and nieces of the truster had been called in the present case, not under that appellation, but each individually, as the effect and object of the settlement would notwithstanding have been precisely the same, it seems too clear for question, that the rights of the children of those who might predecease would be the same also. Suppose, again, that the succession is given to all the nephews and nieces, and under that generic appellation, but with the special exception of two, on account of their undutifulness or separate independence, could it ever be maintained that this would be less a family settlement, or less to be referred to natural affection in the truster, than if there had been no such exceptions? But this, in point of fact, is truly what is done in the present case. The truster's general succession is given substantially to seven out of nine of his next of kin, being his nephews and nieces; and no share (at least of the residue) to any one who is not a niece or nephew, and, as such, one of the nearest relations; and this fact being certain, it is palpably immaterial, as already observed, whether it is so given to them under the general description of nephews and nieces, or to each under his own individual name and designation.

“Though it be quite natural therefore, where relations happen to be thus called under a general denomination, to found on that circumstance, as clearly marking that the bequest is made on account of the relationship, there is no ground whatever for maintaining that this is the only circumstance by which that fact may be ascertained, or the consequent rights of their children (on their predecease) established. In the leading case, accordingly, of the Magistrates of Montrose, 21st November, 1738 (Morr. 6393), the primary institutes were not called as a class, but individually, and by name; as well as in that of Walker, 7th December, 1744 (Morr. 10,328), and also in one of the branches of that of Wallace, already referred to, where the whole doctrine underwent the most careful consideration, without its ever being suggested that the use of a generic appellation was a matter of any importance.”

Mary Hamilton, &c., reclaimed; and the Court having ordered cases, they argued;—

If the Lord Ordinary's interlocutor be well-founded, the rule of law as to the lapsing of legacies will be made of no effect; as it would be difficult to figure any principle on which in future cases this doctrine could be applied, if not applied in the present. The testator's intention is clearly evinced that all the bequests should be regarded as ordinary legacies. Excluding two of his nephews and nieces altogether, he selects the individuals for whom he had a greater or less degree of favour, and distributes his property among them in certain shares and proportions; and in so far as his nephews and nieces are concerned, no mention is made of heirs or representatives. It does not appear that the mere relationship of the parties influenced the testator in such distribution, as not only is the succession divided in very different and unequal shares among those equally nearly related to him, but part of it is given to a second cousin, and part to an entire stranger, while the children of the deceased legatees are not mentioned at all. The present case, therefore, although a settlement in favour of nephews and nieces, being a case of proper legacy, and implying a delectus personæ, the established rule of law that a legacy lapses by the legatee predeceasing the testator must be applied. ¹ The case is different (as in Wallace v. Wallace, ² and Christie v. Paterson ³), where a testator having no particular predilection for any individuals, and evincing accordingly no delectus personarum, but having in view merely the jus sanguinis of certain near relations, is presumed, when he distributes his fortune among them, to intend that if an individual of this class should die, leaving children, these children shall take the share to which their predeceasing parent, if alive, would have been entitled. The case is also different in settlements by a father on his children, where the pietas paterna furnishes the rule of construction, and the grandchild takes in the event of the predecease of his parent, unless there is a plain intention to exclude him. ⁴ When a legacy is bequeathed to a class of relations, without regard to the individuals composing that class, there is an evident reason for adopting the rule of construction, that the issue of any member of that class, who may predecease the testator, should be held to represent his parent, and to take his place under the will of the testator, so as to complete the class; but there is no principle for holding that a particular individual favoured by the testator, if he should happen to be a relative, should stand on a different footing from any other legatee, who might equally be the object of the testator's bounty.

The children of the predeceasing legatees, on the other hand, contended,—

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¹ Fleming v. Martin, June 6, 1798, M. 8111.

² Jan. 28, 1807, F. C.

³ July 5, 1822, ante, I. 543 (new ed. 498), and F. C.

⁴ Dixon v. Dixon, June 10, 1836, ante, XIV. 943 (Opinions of Court).

The provisions in question are not to be dealt with on the footing of special legacies to strangers. It is now settled law, that where the succession of an individual is apportioned by him amongst persons who are his own near relatives, the children of such as may predecease the testator, although not called in the settlement, are held to come in place of their parents, and to have right to the parent's provision, in preference to all other persons whatsoever; and this not merely in the case of provisions to direct descendants, but also in the case of provisions to collateral relations. ⁵ The principle of this rule is the conjectura pietatis,—that where no opposite intention is declared, this shall be held, on a sound view of the leaning of human affection, to have been the intention of the testator himself. It is presumed that the same affection which made him nominate the parent, would induce him to put the children in the room of the parent, they being not less than the other of his own kindred and blood, and only removed by a single degree. The obligation, moreover, to provide for the parent as one of the family, under the pressure of which the original bequest may be supposed to have been made, holds as strongly in regard to the children, and often only the stronger in consequence of their orphan condition. The circumstances attending the settlement in question are favourable to the present claimants, in so far as it is a settlement of the testator's whole succession, and a distribution thereof, with one immaterial exception, amongst all his nephews and nieces; the testator having besides no family, and thus standing very peculiarly in loco parentis to the parties favoured, whose own parents (his sisters) were dead at the date of the settlement. The principle now contended for holds a fortiori, with reference to the authorities, in the present case, seeing there is no express substitution of one legatee to another, so that the intention of the testator that the shares provided to the different legatees should be transmitted, in the event of their decease, to their children, is evinced still more clearly; and also considering that when by a general settlement a testator intimates his intention to dispose of the whole of his property, there is a strong presumption against such construction of the settlement as would leave a large proportion of the property undisposed of. There seems to be no ground for the distinction which is taken on the other side between legacies left to relations as a class, and to relations nominatin and individually. The only difference is in the way of describing the same individuals, which may be purely accidental. The parties themselves and the relative situation of the parties are in both cases precisely the same. If this doctrine is good for any thing, it ought to apply both to the case of collaterals and to settlements among children. But in almost every instance in which the legal presumption has been applied in favour of the children of a deceased legatee, the parties have not been called us a class but nominatim. ¹

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⁵ Mackenzie v. Holt's Legatees, Feb. 2, 1781, M. 6602; Wallace, supra; Christie, supra.

¹ Magistrates of Montrose v. Robertson, Nov. 21, 1738, M. 6398; Walker, Dec. 7, 1744, M. 10328; Binning, Jan. 21, 1767, M. 13047; Roughheads, Feb. 14, 1794, M. 6403; Neilson v. Baillie, June 4, 1822, ante, I. 457 (new ed. 427); Dixon, supra; Wilkie v. Jackson, Feb. 11, 1836, ante, XIV. 1121; Wallace, supra.