Scottish Court of Session Decisions

This case came up by reclaiming note against an interlocutor of the Lord Ordinary [Gifford], of date 25th November 1873. The action was one of multiplepoinding at the instance of the trustees of the late Peter Wedderburn Ogilvy (pursuers and nominal raisers) against the Rev. C. Chevallier, George Mercer, and Rowley Lascellas, together with the trustees of the National Provincial Bank of England (real raisers), and the whole of the children of the late Mr Ogilvy as individuals (defenders). By antenuptial contract of marriage, dated 15th April 1811, and recorded 5th April 1873, between Captain Peter Wedderburn and Miss Ogilvy of Ruthven, the former, inter alia, bound and obliged himself, and his heirs, executors, and successors, in the event of there being a younger child or children of the then intended marriage, male or female, other than the heir who should succeed to his fortune under the destination before written, or in the event of there being only daughters of the said marriage, who should be excluded from his fortune by an heir-male of any after marriage, to make payment to the said younger child or children or daughters, in the event, which occurred, of there being three or more younger children, a sum of £10,000, which was declared to be payable to them at the first term of Whitsunday or Martinmas after the death of the said Peter Wedderburn Ogilvy. It was further by the said antenuptial contract of marriage declared that the said provision in favour of younger children or daughters, in the event of the son of any after marriage succeeding, should be divided among them by the parents jointly, as they should think fit; and failing such division by them jointly, then as the same should be divided by the survivor; and in case of no division being made by the parents or surviving parent, then to be equally divided. The marriage which ensued was dissolved by the death of the lady in 1853. There were issue of the marriage—(1) Lieutenant-Colonel Thomas Wedderburn Ogilvy, who has succeeded to the entailed estate of Ruthven; (2) Lieutenant-Colonel James Wedderburn Ogilvy; (3) Major John Andrew Wedderburn Ogilvy; (4) Jane Wedderburn Ogilvy; (5) Isabella Wedderburn Ogilvy; (6) Anna Wedderburn Ogilvy, who all survived, and Thomas Wedderburn Ogilvy, who predeceased both his father and mother, without issue.

A trust-disposition and deed of settlement, and of joint apportionment, was executed by Peter Wedderburn Ogilvy and his wife on the 14th April 1828, whereby it was stated that they had jointly exercised the power of apportionment contained in the antenuptial contract of marriage, and declared that the sum of £10,000 should be divided equally among their then existing younger children therein named, being their children above mentioned other than Lieutenant-Colonel Thomas Wedderburn Ogilvy, and the apportionment so made was declared to be revocable by the survivor of the spouses. No other joint allocation or apportionment was executed or exercised by Mr and Mrs Wedderburn Ogilvy. Captain Ogilvy made after his wife's death advances to his children, and obtained from them discharges, and from Jane Wedderburn Ogilvy two partial discharges, dated respectively 15th January and 23d December, both in 1869. Miss Ogilvy's share, it was maintained, if no valid apportionment had been made, would be £2000, less of course the amount of the advances made to her by her father. In this state of matters, the defenders, the Reverend Charles Henry Chevallier, George Mercer, and Rowley Lascellas advanced to Jane Wedderburn Ogilvy (first) the sum of £900, on 10th June 1870; and (second) the sum of £240, on 7th June 1871; for which sums and interest thereon she granted two bonds and assignations in security, whereby she assigned to them her rights and interest in and provision due under the contract of marriage. On 4th April 1872 the other defenders, trustees of the National Provincial Bank of England, advanced to Jane Wedderburn Ogilvy (third) the sum of £270, for which she also granted her bond and assignation in security, whereby she assigned her said rights and interest in and provisions under the contract of marriage to them as trustees. All these bonds and assignations were intimated to Peter Wedderburn Ogilvy, and intimation thereof acknowledged by minute by his agents, on 26th September 1870 for the first, and May 13, 1872, for the second and third. A deed of apportionment, dated 26th November 1870,

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was executed by Thomas Wedderburn Ogilvy, on the narrative of the contract of marriage and of the trust-disposition and deed of settlement and apportionment, dated 14th April 1828, and of a power thereby reserved to the survivor to alter, innovate, or revoke the apportionment thereby made; and by which deed of 26th November 1870 he revoked or attempted to revoke the apportionment made in the trust-disposition and deed of settlement and apportionment, and made alternative apportionments. One of these dealt with sums amounting to £4500 of the £10,000, as having been apportioned and discharged, viz., £2000 by James Wedderburn Ogilvy, £2000 by John Andrew Wedderburn Ogilvy, and £500 by Jane Wedderburn Ogilvy. and, on the footing that there remained only £5500 to be apportioned and paid, of this balance he apportioned £150 to Jane Wedderburn Ogilvy, and the remainder between Isabella Wedderburn Ogilvy and Anna Wedderburn Ogilvy equally, but not leaving anything to the deceased son Peter or those in his right. The other alternative was, in case the foregoing apportionment should be found invalid upon any ground, then he, by said deed of 26th November 1870 made another apportionment, viz., a sum of £150 to Jane Wedderburn Ogilvy in addition to the sum of £500, stated to have been discharged, and the residue of the £10,000, so far as not disposed of, among the children entitled to participate therein (other than Jane Wedderburn Ogilvy) equally. The assignees under the bonds granted by Miss Jane Ogilvy disputed the validity of the deed of 26th November 1870, and claimed payment from the £10,000 provided by the contract of marriage of the sums due to them under the bonds in their favour, while the nominal raisers and children of Thomas Wedderburn Ogilvy, other than the oldest son and Jane Wedderburn Ogilvy, maintained the validity of the deed of 26th November 1870, with a view to having effect given to it in connection with and for carrying out the purposes of the trust-disposition and codicils of Peter Wedderburn Ogilvy. In this state of matters the trustees deemed it necessary to bring this action, that the competing rights of parties might be settled, and they admitted only the possession of £150 due to the real raisers. They produced the discharges of the whole younger children other than Miss Jane Ogilvy.

They further (Stat. 2), averred that no claim had been made against them founded on the marriage contract provision, except by the real raisers as in right of Miss Jean Wedderburn Ogilvy. Moreover, that with the exception of Miss Jean Wedderburn Ogilvy, none of the children of the late Peter Wedderburn Ogilvy, who were creditors under the provision, had now any interest in the apportionment of the provision.

The pursuer pleaded—In respect of the competing claims to the sum of £10,000, or part thereof, the pursuers should be found liable in only once and single payment of the said sum, and that to the parties entitled thereto.

The defenders pleaded—(1) No fund in medio: (2) No double distress: (3) On a sound construction of the marriage contract and of the joint deed of apportionment of 1828, the survivor of the spouses had power to apportion, and the deed of apportionment was a valid exercise of this power: (4) The multiplepoinding is incompetent, and ought to be dismissed.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 25 th November 1873.—The Lord Ordinary having heard parties' procurators upon the summons and defences and objections by the nominal raisers—Repels said objections; finds the pursuers and nominal raisers liable only in once and single payment, and appoints all concerned to lodge condescendences and claims within eight days, reserving all questions of expenses.

Note.—There is great force in the objections stated by the pursuers and nominal raisers to the competency of the present action of multiplepoinding. It is, to say the best of it, a very awkward mode of raising the true question at issue, and the Lord Ordinary heard no good reason why the question was not raised by an ordinary action of declarator and payment, calling all parties interested. Plainly that was the natural and best form of process.

Still, after considering the whole circumstances, the Lord Ordinary has not found himself compelled to throw out the present action, and thus cause expense and delay which in his view are unnecessary. He thinks the real question at issue—a question of some delicacy as to the validity and effect of the successive deeds of apportionment—can be well enough tried in the present action—tried quite efficiently and that none of the parties will suffer prejudice from the mere form of process. In strictness, also, the Lord Ordinary thinks that he is not compelled to throw out the action on the grounds either that there is no fund in medio, or that there is no double distress.

Admittedly the action of multiplepoinding would have been good if the children had not discharged their rights under the marriage-contract. There would have been an admitted marriage-contract fund of £10,000, and a dispute among five children as to how it was to be apportioned. If even any one child claimed a larger share than, the other children admitted, then, quoad hoc, there” was double distress, and a multiplepoinding would have been competent at the instance of the holders of the fund. Cases like this very often arise, and a multiplepoinding is quite a proper process for the distribution of a marriage-contract fund when questions arise about its apportionment.

But the objectors say that all the children excepting Miss Ogilvy have renounced their shares of the £10,000, and that thereby the claim of Miss Ogilvy and her assignees is a simple petitory claim But this renunciation was never intimated to the nominal raisers in such form as to make it quite safe for them to rely that no claim remained in the other children.

The deeds, the last of which is dated only on 11th April 1873, were never communicated, and it is possible there may be questions as to the effect of these deeds.

There is no practical difficulty in raising the competition. The fund in medio may be held to be the utmost share which Miss Ogilvy claims, and the competitors will be, first, Miss Ogilvy and her assignees, and second, the general testamentary trustees or the residuary legatees to whom the rights of the renouncing children have inured.

All questions of expenses are reserved; and expenses can be dealt with quite as equitably in this process as in a declarator.”

The trustees reclaimed.

Argued for the reclaimers (pursuers and nominal

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raisers)—This multiplepoinding is not competent; there is no double distress; there are no competing interests. It is simply a question between Miss Jane Ogilvy and the trustees on her father's estate, and accordingly such a form of action is not workable. Miss Ogilvy was no better than a creditor on her father's estate under the obligation of the marriage-contract, and that whether her claim be limited to £2000 or not. Each child was a creditor for its own share. But all the claims of the children, other than Miss Ogilvy, have been satisfied, and each of them has granted a discharge of those claims; they accordingly have no interest in the matter. There can be no doubt that a petitory action would have been perfectly competent, and any contrary plea would have failed. Suppose the trustees had tried to raise a multiplepoinding. It would have been a multiplepoinding only as regards Miss Jane Ogilvy's share, and she would have objected to be burdened with the expense of bringing such an action into Court. What we really have here is no more than a process for ascertaining the amount of the debt due by the trustees to Miss Ogilvy. There is no competition by the other children—the discharges free the estate quoad them. If an action in this form is to be allowed at all, it must surely have been raised by the trustees, and not so as to burden Miss Ogilvy with the expense.

Argued for respondents—A multiplepoinding is here a very suitable form of action. There are two sets of pursuers—(1) Those who hold assignations to the extent of £1100; (2) the National Provincial Bank of England, who hold the bond and assignation in security for £270. Both these claim on the £10,000. The answer of the trustees is, we have but £150, and you can only claim on that. A multiplepoinding is competent because: (a) you have two claimants on a fund which wont meet both or either; (b) the trustees deny having more than a certain sum. [Lord Neaves—I suppose your assignations were intimated.] They were so. We think undue weight has been given to what are termed discharges of their shares in this fund by younger members of Patrick Wedderburn Ogilvy's family. These bear no analogy to discharges of legitim by a father during his lifetime. Such discharges are not at all competent in the case of a fund for apportionment. [ Lord Justice-Clerk—You think, that because the father has the power of raising or lowering the amount, he cannot discharge.] I think so. These discharges are not one of them acts of apportionment. They are of no value whatever. Although there is a general discharge, there is no indication of the amount apportioned, and therefore it would have been quite competent for Mr Ogilvy subsequently to have apportioned any sum. There was at this date no apportionment at all, and there never was one until by the truster's death the deed under which the trustees are acting came into operation. Observe the terms of the deed of trust. This is the first and the only apportionment. This is not a question of the distribution of the estate, but of the distribution of that which is a debt upon the estate. [ Lord Justice-Clerk—The very statement of all these matters would seem to show that they should be raised by some more direct mode than by that of multiplepoinding. It is usual to employ actions of reduction.] In the case of M‘Donald's Trs., 11 Scot. Law Rep. p. 290 a multiplepoinding was employed. (1) The great object of a multiplepoinding is to give to every one that notice which is requisite, and enable the Court to deal with all the questions without considering the effect on the interests of any one called in the multiplepoinding who has not appeared, and (2) it avoids any direct strife, and allows each to judge of his own interests and claim, and to act accordingly.

At advising—