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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v. Campbill [1867] ScotLR 3_125 (21 December 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0125.html
Cite as: [1867] ScotLR 3_125, [1867] SLR 3_125
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SCOTTISH_SLR_Court_of_Session
Page: 125↓
Court of Teinds Inner House Second Division.
v.
Facts:
A testator left the liferent of certain lands to his widow, and directed that on her death they should be conveyed to his nephew in the event of his surviving him. He also left an English will dated on the same day, in which he appointed his trustees to permit his widow to have the free use of certain furniture, &c., during her lifetime (which provision she afterwards renounced), and also directed them at any time after his death to convert his personal estate into money, and invest the residue in trust for his nephew. The nephew survived the testator, but predeceased the widow, leaving a settlement in favour of his mother. Held that the right to the lands and the furniture had vested in the nephew, and was carried by his settlement.
By trust-disposition and settlement, executed on the 26th June 1860, and recorded on 30th May 1862, Colonel John Campbell of Melfort conveyed to trustees the lands of Kilchoan and others, with directions to them “to permit his wife, Mrs Louisa Farquhar Ricketts or Campbell, to have and enjoy the use of the said lands and others, including the residence on Kilchoan, during all the days of her life, she paying the yearly burdens to which life-renters are liable.” The deed further provided that on her decease the lands should be conveyed and made over in fee to the truster's nephew, “Archibald Frederick Campbell, son of his late brother, William Frederick Campbell, in case of his survivance of the said deceased Colonel John Campbell, and the heirs male of his body;.… and in case of the predecease of the said Archibald Frederick Campbell.… the trustees were directed, on the death of his said wife,.… to sell, dispose of, and realise his said estate, and apply the proceeds thereof and all accumulations of rent in their hands to and among the truster's sisters who might then be surviving, and the issue of any of his brothers and sisters who might have died in his lifetime.” Of same date with this disposition, Colonel Campbell executed a will in the English form, by which he appointed the trustees under the trust-disposition as his executors, and directed then1 to permit his said wife, “besides her liferent interest in the farm and residence at Kilchoan, to have the free use and enjoyment during her lifetime of the furniture, bed and table linen in and about his said residence, and of all his silver plate and plated articles;” and after her death to deliver over the same to his residuary legatee. The executors were further directed, at any time they might see fit after his decease, to call in and convert into money such other parts of his said personal estate as should not consist of money; and after paying deathbed and funeral expenses, to invest the residue of his personal estate “in trust for his said nephew, Archibald Frederick Campbell, the son of his deceased brother, William Frederick Campbell (who would then be head of his family) as his residuary legatee, his executors, administrators, and assigns; but if the said Archibald Frederick Campbell should die during his lifetime, then in trust for the first and only son of his said nephew, Archibald Frederick Campbell, who should live to attain the age of twenty-one years absolutely; and in case there should be no such son, then in trust for the first and only son of his deceased brother, Patrick Campbell, .… and in case there should be no such son, in trust for such of his sisters as might he living at his death, and for such of the issue living at his death of any of his brothers and sisters who might have died in his lifetime. But declaring always, that in case the said trust-funds so payable to the said Archibald Frederick Campbell, or his son, or the son of his late brother Patrick … should exceed in value (exclusive of the value of his furniture and bed and table linen at his residence at Kilchoan, and of his plate) the sum of £5000 sterling, all excess over such sum shall be payable and paid to and among his sisters, and the issue of his deceased brothers and sisters.” By marriage settlement in the English form, of date 15th April 1839, Colonel Campbell had, prior to the date of the above deeds, and in contemplation of his marriage with Mrs Louisa Farquhar Ricketts or Campbell, agreed to pay to certain trustees a sum of £5000 within six months after his decease, in addition to another sum of £5000, therein narrated to have been that day paid to the said trustees.
Colonel John Campbell died on the 1st October 1861. He was survived by his wife, Mrs Louisa Farquhar Campbell; and on his decease the parties named in the above trust-disposition and settlement accepted and entered upon their office as his trustees and executors. The widow having claimed her provision both under the marriage-contract and under the mortis causa deed, Archibald Frederick Campbell, on the 26th September 1862, raised an action against her and against the testamentary trustees of his late uncle, concluding for declarator that she had, under the testamentary deeds of Colonel Campbell, accepted a liferent of the lands of Kilchoan in place of the sum of £5000, agreed by the marriage-settlement to be paid to her upon his decease; and, further, that the testamentary trustees should be interdicted from paying that sum of £5000; or otherwise to have it found that
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Mrs Campbell was not entitled to both, but was bound to make her election between the liferent of the heritable property or the provision under the marriage-settlement. The Court, on 17th Nov. 1864, having found that she was not entitled to both, she elected to take her provision under the marriage-contract; and the case having been remitted to the Lord Ordinary, his Lordship, on 9th December 1864, pronounced an interlocutor, declaring that she had forfeited all right to the liferent of the farm and lands of Kilchoan. Archibald Frederick Campbell, the truster's nephew, died on 12th October 1863, at the age of twenty-three, leaving a disposition and settlement, dated 4th July 1862, whereby he bequeathed his whole estates, heritable and moveable, to his mother, Mrs Anne Moore or Campbell. Upon the 21st June 1865, Mrs Anne Moore or Campbell brought ail action of declarator, count, reckoning, and payment against Colonel Fitzroy Campbell and Mrs Louisa Farquhar Campbell and others, the surviving and accepting trustees and executors under Colonel Campbell's trust-disposition and testament. The conclusions of the summons were—(1) that it should be found and declared that the pursuer had good and undoubted right to all and whole the town and lands of Kilchoan, with the island and mill thereto belonging and pertinents of the same; (2) that the trustees should be decerned and or-dained to dispone and convey the said lands to the pursuer and her heirs and assignees; (3) that the pursuer had right to the furniture, bed and table linen, silver-plate, and plated articles in and about the residence of the said deceased Colonel John Campbell at Kilchoan at the time of his death; (4) that the defenders should make payment to the pursuer of the rents and annual profits of the said lands, furniture, and others, from 1st October 1861 to 26th May 1865; or (5) in the event of the same not having been let, of the sum of £200 per annum as the yearly value of the same for the above period; (6) that the pursuer had right to the residue of Colonel Campbell's personal estate to the extent of £5000, exclusive of the value of the furniture, plate, and others; (7) that the defenders should hold count and reckoning with the pursuer for their intromissions in the premises; or (8) if they failed to do so, should pay to her the sum of £5000 as the residue of the means and estate of the said Colonel John Campbell. In this action the children of the deceased brothers and sisters of Colonel Campbell were also called as defenders. Defences were lodged for Melfort Campbell, eldest son of the truster's deceased brother Patrick Campbell, by John Leishman, W.S., his tutor ad litem, to the effect that Archibald Frederick Campbell having predeceased the widow of Colonel Campbell the truster, without heirs male of the body, the succession to the estate of Kilchoan as also to the residue of Colonel Campbell's personal estate, at least to the extent of £5000, and to his furniture, plate, bed and table linen, had opened to him, and that he was entitled to obtain possession thereof on his attaining the age of twenty-one years.
Thereafter, on the 28th November 1865, the trustees and executors raised an action of multi-plepoinding and exoneration to have it found that they were liable only in once and single payment on denuding of the estate and effects of the late Colonel Campell, so far as the same had been recovered or were held by them. The actions were then conjoined. On the 13th March 1866, the Lord Ordinary (Jerviswoode) pronounced an interlocutor, in which his Lordship found, declared, and decerned, in terms of the first, second, and third conclusions of the summons of declarator. To this interlocutor the following note was appended:—
“It appears to the Lord Ordinary that, under the trust-disposition of the deceased colonel Campbell, dated 26th June 1860, his nephew, Archibald Frederick Campbell, took an interest in the fee of the estate thereby conveyed, which vested in him through his survivance of the truster, and through his attaining to majority on the 19th October 1861, and consequently that the disposition and settlement executed by him on the 4th July 1862 was sufficient to carry and did operate as a conveyance of the whole estate, heritable and moveable, including that to which he had right under the trust-disposition of Colonel Campbell, above referred to, to his mother, the pursuer.
It does not appear to the Lord Ordinary that there can here exist any doubt whatever as to the intention of Archibald Frederick Campbell to convey every estate and right which he possessed, whether heritable or moveable, to his mother, and that, as such right as he took under the deeds of settlement of the deceased Colonel Campbell had in fact opened to him previous to the date of his own deed of disposition and settlement of 4th July 1862, effect must be given to the principle of construction on which the ease of Campbell v. Campbell and Husband, 17th February 1743 (1 Craigie and Stewart, (Paton), p. 343) proceeded, and which was more recently and clearly enunciated and enforced by Lord Curriehill in the case of Collow's Trustees v. Connell and Grierson, February 23, 1866. Now, assuming the application of this doctrine here it cannot be doubted that Mr Campbell Intended to convey to his mother every right of which he should die possessed; and as his deed of settlement bears date 4th July 1862, while the late Colonel Campbell the right to whose property is here in question, had died on the 1st October 1861, it must, it is thought, be held that, whatever right (if any) which Mr Campbell had in that property, was, so far as respects intention, apart from the question of power, conveyed by him to his mother.
On the whole, the Lord Ordinary is of opinion that the pursuer must here prevail; but he is far from saying that, in his opinion, the question is free from doubt or difficulty.
Against this interlocutor Melfort Campbell and his tutor ad litem reclaimed.
Millar (with him the Lord Advocate), for him, maintained—The question was one of vesting and not of intention. A. F. Campbell's right under the trust was not intended to give him power over the estate until he got a dissposition from the trustees after the widow's death. There being words of survivorship in the trust-deed, the vesting was postponed till after the death of the liferentrix; that event must be held to be the period of division of the estate. Young v. Robertson February 11, 1862, 4 M‘Q. 319.
Crichton, for Mrs Anne Moore or Campbell, submitted-The case falls under the rule of Leitch v. Leitch's Trustees, February 17, 1829, 3 W. and S. 366. The estate vested in A. F. Campbell on the death of his uncle; but he was not entitled to demand a conveyance of the subjects till after the death of the liferentrix.
Lee, for the trustees and executors, was not called upon.
The opinion of the Court was delivered by
Page: 127↓
Even if that were not the case, it cannot be doubted that in construing the one deed, in a question of the intention of the testator, we could not avoid looking at the other. Even if they had not been of the sale date, they are both part of the truster's settlement. When we look at the trust-deed, it call hardly be doubted that what the truster intended as to the vesting of the fec of the lands is somewhat obscurely expressed. There are considerations arising on the face of the deed both ways. The question seems to be, did the fee of the lands vest by survivance of the truster, or did it vest only by survivance of the widow? I think it is clear that at whichever of these two periods it was to vest, it was to be an absolute fee. When the time came for a conveyance to be granted, it was to be a conveyance in ice simple. It was not to be a conveyance with a substitution or a destination beyond the immediate disponee. Whichever of the parties was to take the succession at the proper period, that party was to take it absolutely. The consequence of this is, that if the fee did vest in Archibald Campbell it would go to his heir-at-law. Even if the testator's intention had been that no conveyance of the property was to be granted till after the death of his widow, the practical result would have been the same—Archibald Frederick Campbell would have had full right to dispose of it. If, therefore, the testator meant that the fee should vest in A. F. Campbell simply by his survivance of the truster, then that meaning is given effect to either by Archibald Campbell getting the estate when alive, or by his heir or disponee getting it. All that is consistent with the truster's intention. It is not at all surprising that that was the testator's intention. We see here that the lands of Kilchoan was not a landed estate of any importance. It was a farm; the residence was a cottage. It was worth only £l00 a year, and subject to the burden of a heritable debt of £2000. The only difficulty is, did Colonel Campbell mean the party who survived him to get the beneficial fce, or did he mean the party who survived his widow to get it. The strongest argument against the vesting was that there was to be no actual conveyance of the lands till the widow's death. I am alive to the importance of the principle involved in the cave of Donaldson's trustees, which I think is, that whenever there is a survivorship or its equivalent, and where there is no life interest in the estate, the period of vesting is the death of the truster, but where there is a life interest, the presumption is that the period of vesting is the period of the decease of the person who has the life interest or of conveyance of the estate. Here, therefore, there is a presumption that vesting did not take place till the death of the widow. But while we take that into account we must also take into account all else that appears in the deed before we answer the question what was the intention of the testator. For the whole question is one of intention. But when we come to the question of intention, there is a diffculty on the face of the trust-deed, because the truster says the lands are to go to A. F. Campbell “in case of his survivance of me.” The natural reading of that is that if A. F. Campbell survived the truster, the beneficial right vested in him, although he was not to get a conveyance of the estate till after the death of the widow. If we take these words standing by themselves, they would be conclusive as to the vesting of the beneficial right. But then we come down to the words, “And in case of the predecease of the said A. F. Campbell or of the failure of heirs male of his body. ... the said trustees were on such failure to sell, dispose of, and realise the said estate,” &c. It is by no means so clear what the truster means there by the predecease of the said A. F. Campbell—whether it means predecease of the truster or of the widow. If it is to be read consistently with what goes before it, it is predecease of himself. To say the least of it, it is very dubious. And what follows is scarcely less so; for it says the proceeds are to be applied “to arid among the truster's sisters,” &c. It is a remark of importance that the whole parties there named are those who are to be living at the truster's death. But, however doubtful all that is, the result is rather I think in favour of holding that he contemplated vesting at his death. It is remarkable that he mentions no other of his nephews except Archibald, who at the truster's death was past majority, and must have been personally known to him, and was apparently in favour with him. It rather seems that he contemplated that if Archibald survived him he was to have the beneficial fee. But we can't decide this upon the trust-deed alone. We must look also at the will. There is a little embarrassment arising from the fact that as the Lord Ordinary has not decided where the fee of the residue of the £5000 is to go, we cannot do so either. But in considering the question before us we must look at both deeds. The will gives the widow the use of the furniture and plate, to be delivered at her death to the residuary legatee; the executors are to convert it into money, and then invest the balance “in trust for his said nephew Archibald Frederick Campbell.” Archibald is to be residuary legatee, and these monies are to be held in trust for him. And then it goes on, “but if the said Archibald Frederick Campbell shall die,” then the monies are to be held in trust “for
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The only other question is whether the general disposition and settlement has conveyed these subjects to Archibald Frederick Campbell's mother. Upon that I have no doubt. If I am right, Archibald Frederick Campbell by survivance of the truster became fee-simple proprietor. He held not under a deed with a destination, but under a deed which would have made these subjects descend to his own heir-at-law, if he had not executed this disposition. And I therefore think it clear that this general disposition conveyed them to his mother.
I think the better form of our interlocutor would be to recal that of the Lord Ordinary, to find that the fee of the lands and furniture vested in Archibald Frederick Campbell, and quoad ultra remit to the Lord Ordinary.
Solicitors: Agent for Anne Moore or Campbell— William Waddell, W.S.
Agents for Colonel Campbell's Trustees and Executors— A. & A. Campbell, W.S.
Agents for Melfort Campbell— Adam & Sang, S.S.C.