Scottish Court of Session Decisions

The deceased James Crawford jr., by ante-nuptial contract of marriage bound and obliged himself and his heirs, executors. and successors whomsoever, to make payment to his promised spouse, in case she should survive him, during all the clays of her life-time, of a free yearly annuity of £150 sterling, and that at two terms in the year, kc. And he further bound and obliged himself and his foresaids to make payment to her of £50 yearly in lieu of a house during her widowhood.

Crawford died in 1863. Before his death he executed a trust-disposition and settlement where-by he disponed and assigned to the pursuers, and A. H. Crawford, the defender, his whole heritable and moveable estate, as trustees for certain purposes. He also appointed the said trustees to be his executors. The trust purposes were, inter alia—(1) payment of his debts and the expense of executing the trust; (2) payment in the most liberal and ample manner of the yearly annuities and provisions in favour of his wife, contained in their contract of marriage, dated 24th November 1833, and of an additional provision in her favour of £2500, £50 whereof should be held by her for other parties, and £2000 should be retained by herself. (3) payment of various legacies, including one to the defender of £150, as a very small token of the truster's regard, it being his wish that the defender, Crawford, his wife, and four children, should each receive £20, and that the remaining £80 should, in addition to the £20, be given, to his son Alexander, for the purpose of buying some memento which the truster had intended to present him with upon his entering upon the world.

After Crawford's death, the defender, A. H. Crawford, who was his brother and heir-at-law, brought a reduction of his brother's disposition and settlement ex capite lecti, in regard to the heritable estate, in which he obtained decree.

Thereafter the trustees and executors of James Crawford brought the present action against A. H. Crawford and his wife and their children, in which they sought to have it found and declared that the defender, A. H. Crawford, was bound to free and relieve them and the moveable estate of the late James Crawford of the annuities foresaid, to the extent of the value of the heritable estate to which he had succeeded or might succeed, and that he should be decerned to pay the same; and further, that in respect of the reduction the foresaid legacy (specified in the third purpose of the trust-disposition) should he declared to have been forfeited, and that it should be found that neither

A. H. Crawford nor the other defenders were entitled to demand payment of it.

A record having been made up between the parties, Lord Jerviswoode, Ordinary, pronounced the following interlocutor:—

“ Edinburgh, 16th February 1866.—The Lord Ordinary having heard counsel, and made avizandum, and considered the closed record, productions, and whole process—Finds, 1st, That the defender is bound to free and relieve the pursuers, as trustees and executors of the deceased James Crawford, junior, W.S., of and from the annuity of £150, and annual payment of £50, set forth in the leading conclusions of the present summons, under the deduction from the said annuity, and subject to the condition attached to the said annual payment, as stated in the summons, and that to the extent of the value of the heritable property to which the defender has succeeded, or may yet succeed, as heir in heritage of the said deceased James Crawford, junior, and to such extent and effect sustains the first plea in law for the pursuers; and 2d, That in respect the defender has challenged and set aside the deed of the said deceased, in so far as respects the conveyance of heritable estate therein contained, he is barred from taking any benefit under the same, and, in consequence, cannot claim the sum of £20, being the portion of the sum of £150 bequeathed to him for distribution to his wife and children, to which he has right as an individual; and, with reference to these findings, and to the several conclusions of the summons, appoints the cause to be enrolled, that parties may be heard as to the particular terms of such decree as may be competent

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and necessary under the same, and reserves meantime the question of expenses.

Charles Baillie.”

“ Note.— The debate which here took place had relation mainly to the leading, and in a pecuniary sense, the truly important question, whether or not the defender, having, in his character of nearest lawful heir of his brother, the deceased James Crawford, successfully challenged the deed of settlement of the latter, in so far as the same disposed of heritable estate, is now bound to bear the burden of payment of the annuity of £150, provided by Mr Crawford in favour of his wife Mrs Crawford, in terms of the contract of marriage referred to in the conclusions of the present action, under the deduction therein stated, and also of the sum of £50 yearly in lieu of a house, as also therein set forth.

The Lord Ordinary has adopted the views which were here urged on the part of the pursuer. It a appears to him that the annuity provided by the deceased for his widow, in terms of the contract of marriage set forth in the conclusions of the summons and record, is, as bearing tractum futuri temporis, heritable in its character, and therefore, apart from special provision to a different effect, such as to form ex lege a debt against the heir in heritage of the

If this be so, it follows that, had the late Mr Crawford, as to whose succession this question has reference, failed to execute any mortis causa deed or settlement whatever, and left his estate, and the burdens affecting the same, to be settled and regulated by the operation of law alone, the annuity provided to his widow would have formed a proper burden on the heritable estate, to the relief (assuming its sufficiency in respect of value for that end) of the moveable succession.

When, then, the defender came forward as he did, in the original action at his instance, to ex capite lecti the disposition and settlement of the deceased, in no far as heritage was thereby conveyed, and by his success in that action carried to himself, in his character of heir of the deceased, the whole heritable estate, he took that estate out of the general succession of his brother free of all the obligations or burdens which might have attached to it, merely as forming a portion of that succession as a whole, had it remained subject to the mortis causa deed of the brother, but not free of such of these burdens or obligations as properly attached to the subjects which were heritable in their own character while in the person of his brother, nor of such burdens as would attach to these subjects ex lege at his death.

Of the latter class of burdens, it appears to the Lord Ordinary the annuity to the widow of the deceased, as bearing tractum futuri temporis, was one.

It was the intention of the deceased to have massed his whole estate, heritable and moveable, and to make it available in the hands of his trustees for all the purposes contemplated by his deed. But when the pursuer now throws aside the deed, and denies effect to the will of the deceased, and in his character of heir-at-law claims and takes the heritage for his own advantage, he cannot stop at that point, but mast go further, and take it subject to all its proper burdens. Now, as between heir and executor, in a case where the succession is left to the operation of law alone, the Lord Ordinary assumes it to be clear that an annuity to a widow, such as that here in question, falls primarily as a burden on the heir in heritage.

But the defender cannot relevantly or competently say that he is in any position referable to that of such an heir. He asserts and takes his right solely in that character, and must, in consequence, admit his liability for all burdens which by force of law attach to that estate which he thus takes. The fact that the deceased directed his trustees to pay the annuity from the general estate, cannot be alleged by him as a ground of exemption, for by his own act he has infringed on the integrity of that estate, and has created that separation of interests between heir and executor which was the direct object of the deceased to exclude; and having so created the separation, he mud admit it to be carried out to its legitimate results,

This view of the question appears to the Lord Ordinary to be that which has been taken by the Court in disposing of questions of relief between different classes of heirs or beneficiaries, in cases similar in their general features to the present—such as of Bain v. Reeves, January 29, 1861, 23 D. 416, and of Sinclair v. Fraser, 14th February 1798, Hume 176, which is referred to in the above ease of Bain by the Lord Ordinary; and also in those of Edmonstone v. Edmonstone, July 20, 1706, M. 3219, and of Campbell v. Campbell, House of Lords, 1st June 1749, 1 Paton's Appeals, p. 436. Important principles bearing on the same matter are discussed dealt with by the Court in the elaborate opinions delivered in the case of Wallace v. Ritchie's Trustees, July 7, 1846, 8 D. 1039.

The Lord Ordinary must, in conclusion, refer shortly to the second branch of the interlocutor, which deals with the question as to the bequest of £150 to the defender in the peculiar term quoted in the summons. The view of the Lord Ordinary, on which he has proceeded in dealing with that matter, is that Crawford was to receive the sum in question truly as trustee for his wife and children, excepting as respects the sum of £20, which seems to the Lord Ordinary to be a direct bequest to the defender himself, and therefore one which he cannot take while he reprobates the deed by which it is given.

C. B.”

Against this interlocutor the defender, A. H. Crawford, reclaimed, in so far as it dealt with the annuity of £150, and annual payment. The other portions of the interlocutor were acquiesced in.

The Solicitor-General and Nevay, for the defender, argued that the heritable estate having been, by the heir's reduction, withdrawn from the trust-settlement, the moveable estate alone remained subject to the trust purposes. In an intestate succession the heir would undoubtedly have been liable for this annuity, as a debt properly falling on the heir. A testator may however, as here, alter, or rather reverse, the rule of law. if the truster's settlement had contained a conveyance of the moveable estate only, the direction to pay the annuity out of that estate would have imposed the burden primarily upon the trustees. In the present case, however, the intention was to make both heritable and moveable estates in the hands of the trustees liable for the annuity. The heir's reduction, however, has defeated that intention, and left the moveable estate alone subject to the trust powers and purposes. By the reduction the truster became intestate as to his heritable estate, and the result in law is just the same as if that estate had never been included in the settlement. It is of no consequence, therefore, what his intention was, as events have brought about a contingency not provided for. In the case of a deathbed settlement to the prejudice of the heir, containing a revocation of prior settlements,

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which also excluded the heir, the rule of law is well settled that the heir ma reduce the settlement, quoad the heritage, and yet take advantage of the revocation of the former settlements, although that defeats the intention of the testator. The doctrine of approbate and reprobate was not applicable to this case where the heir was not, in the proper sense, seeking benefit from the settlement. He was defending himself from a claim at the instance of the trustees, whose sole title to make the claim ex facie discloses that they alone are liable in the claim. But even if the heir's defence involved approbate and reprobate, that is not necessarily fatal to it. In the case of an heir taking benefit from a revocation of previous settlements to his prejudice, he necessarily approbates and reprobates. But if the settlement in the present case had directed the trustees to convey the heritable estate to a third person and to hold the moveable estate for the payment of the annuity, the trustees could have had no relief against the heir challenging the settlement. Trustees in such a case could only be held as suing in the interest of the special and residuary legatees, whose interest was, by the conception of the trust, limited to the moveable estate. Lastly, if the heir was to be held to his legal obligations, he ought, on the other hand, to have his legal privileges. Collation here would give greater benefit to the heir than taking the heritage even unburdened. But as the heir cannot have collation here, the trustees cannot press against him his legal obligations.

A. R. Clark and Trayner, for pursuers:—The annuity of the widow is an obligation in which the heir is primarily liable by the rule of the common law. The defender has failed to show any reason for the application of a different rule here. He has voluntarily taken up the heritable succession, against the will of the deceased; and, having taken the advantages of that character, he must bear its burdens. The special clause in the deceased's will on which the defender founds cannot avail him—(1) because, as he has reprobated the testators will, he cannot take benefit under it In any way; and (2) because that clause does not lay the burden proper to the heir upon the executor, but lava each to meet the burdens proper to their respective characters.

The following authorities, in addition to those mentioned in the note to the Lord Ordinary's interlocutor, were referred to in the discussion of the case:- Erskine, 2. 2. 6; 3. 9. 48; Stair, 3. 8. 65; Bankton, 3. 8. 97.98; Hill v. Maxwell and Robertson v. Baillie, M. 5473; Rueselle v. Russell, M. 5211; Cam bell, Hume's Decisions, 180; Moncrieff v. Skene, 1 W. and S., 672; Denham v. Denham, v. 6224; Waddell v. Waddell, 6 DOW, 279; Drummond, 4 Paton, 66; Fraser, 5 Paton, 642

At advising,

The Lord Justice-Clerk—The facts of the present caw are very simple. The deceased James Crawford in his marriage-contract, became bound in the ordinary way to make payment to his promised spouse, in case she should survive and during all the years of her life, of a free yearly annuity of £150, “and that at two terms,” &c.—[Reads]. There can be no doubt as to the legal character of such an obligation. It constituted proper debt against Crawford, his estate and “his heirs, executors, and successors whomsoever,” as the marriage contract beam;but being a debt bearing a tract of future time, it, of course, In the event of intestacy, would have become a burden upon the heir. Before Crawford's death, however, he executed a trust-disposition and settlement, whereby the trustees were by the ordered to make payment to his widow of the annuities and provisions conceived in her favour in the contract of marriage. Thereby undoubtedly Crawford made the annuity in question a special burden upon his trust-estate, which consisted of the universitas of his succession. It would a pear that this deed had been executed on deathbed, and accordingly the defender of this action, r. heir, raised a reduction of it so far an it conveyed heritage. He obtained decree of reduction, which set the deed aside quoad heritage, which he was enabled to take up as if there had been no deed. This left the trustees in possession of the moveable estate alone; and they bring the resent action for the purpose of obtaining relief from the payment of the annuity on the ground that it forms a proper debt against the heir. It is not disputed that it would have been so if there had been intestacy here. The only question is, What is the effect, as regards the moveables, of the deed having been-executed on deathbed, and of the provisions directing the trustees to make payment of the annuity? The view that I take of the case is a very simple one. I don't think it necessary to consider any question of approbate and reprobate, or of equitable compensation. According to my view, the heir can take no benefit from any supposed intention of the truster. The effect of what has taken place must be judged of entirely with reference to the legal rights and obligations of parties as brought into operation or left unaltered. Now this annuity in the case of intestacy would have transmitted against the heir. The executors would also have been liable with relief against him. By the trust-deed and the decree of reduction the liability of the heir is not affected so far as creditors are concerned; nor are the executors made liable further than they would have been at common law. The moveable estate stands impledged as an additional security for the performance of the heir's obligations. The reduction can't create any right to heir to be relieved of his obligations out of the moveable estate. That moveable estate is, so to speak, cautioner for the heir. I can find no principle extending the rights or reducing the liabilities of he heir in that he has forced himself against the will of the deceased into the heritable estate as ab intestato.