Scottish Court of Session Decisions

This was a multiplepoinding, in which J. A. Molleson, C.A., Edinburgh, trustee on the sequestrated estate of the deceased David Cormack, S.S.C., Edinburgh, was pursuer and nominal raiser; and Charles Rowatt M'Millan, shipwright in Liverpool, and Mitchell & Baxter, W.S., Edinburgh, his assignees, were real raisers; and John Davies, the husband, and Edward Davies and others, the children of the deceased Mrs Davies, and Mrs Cormack, widow and executrix-nominate of the said deceased David Cormack, were defenders.

By disposition and settlement, dated 17th November 1826, Charles Rowatt, surgeon in Campbelton, inter alia, directed Charles Rowatt of Kilkivan, his grandson and universal disponee, to pay an annuity of £25 to Mrs M'Millan, wife of Peter M'Millan, then residing in Liverpool, and after the death of the survivor of her and of Mary Forbes (who predeceased her), to pay to the heirs, executors, and assignees of Mrs M'Millan the sum of £500, with interest from the first term of Whitsunday or Martinmas after her death. He further provided that his heir-at-law, on being required, was to give security for this sum over the heritable property which should be left at his decease. A heritable bond of annuity and bond and disposition in security was accordingly granted by Miss Flora Forrester Rowatt of Kilkivan, the testator's sister and heir-at-law, dated 21st September 1827, in favour of Peter M'Millan, David Campbell, W.S., and Edward M'Millan, as trustees for behoof of the heirs, executors, or assignees of Mrs M'Millan.

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By trust-disposition and settlement, dated 2d and 9th July 1830, prepared in the Scotch form by a Scotch conveyancer, Mrs M'Millan assigned the principal sum of £500 to the Rev. William M'Millan, the said Peter M'Millan, her husband, and Edward M'Millan, S.S.C., as trustees for the purposes contained in the deed. Her husband was a consenter to this deed, which he signed in Liverpool, where he then resided. The testatrix signed it in Scotland, at Edinburgh, where she also executed a judicial ratification in the usual form.

The directions contained in this trust-disposition and settlement were recalled by a deed of alteration, also prepared in the Scotch form and by a Scotch conveyancer, dated in 1831. This deed Mrs M'Millan signed at Edinburgh, and her husband, who was designed “as presently mate on board the ‘Magdalene’ of Greenock,” signed it at Campbelton. Mrs M'Millan further executed a judicial ratification of this deed at Edinburgh before a Justice of the Peace. By the deed there was, inter alia, bequeathed the principal sum of £500 to be divided amongst “the children to be procreate of the marriage between us share and share alike, or survivor of them, upon their respectively attaining the age of twenty-one.” This payment was not, however, to be made to the children until either the death or the second marriage of their father.

In 1851 Peter M'Millan assumed David Cormack, S.S.C., and Alexander M'Millan, W.S., as new trustees under the heritable bond and bond and disposition in security. Mrs M'Millan died on 12th February 1860. In May following David Cormack prepared and sent to Peter M'Millan a discharge of the bond for £500, which was signed and returned by him, and at Whitsunday of that year David Cormack received the principal sum of £500 in the bond, and £12, 3s. 8d. as half year's interest. David Cormack died in August 1867, and having been predeceased by Alexander M'Millan, Peter M'Millan became the sole surviving trustee under the heritable bond and bond and disposition in security, as well as under Mrs M'Millan's trust-disposition and settlement—the Beverend William M'Millan and Edward M'Millan having also previously died. As sole surviving trustee under the latter deed, Peter M'Millan, on 26th June 1872, with concurrence of Charles Rowatt M'Millan, his son, raised an action of count, reckoning, and payment against Mrs Cormack, as executrix-nominate of David Cormack, her husband, in which decree in absence was pronounced against the defender, ordaining her to make payment to the pursuer of £500, held to be the balance of the intromissions of David Cormack with the trust-funds, with interest from the date of citation.

David Cormack's estates were, on 17th August 1872, sequestrated, Peter M'Millan being one of the creditors who applied for sequestration by virtue of his claim under the decree in absence. The pursuer and nominal raiser was confirmed as trustee upon the estate, and among other claims lodged was one by Charles Rowatt M'Millan, Mrs M'Millan's only son (his father having died in the interval) claiming the sum of £500, with interest. In making this claim Charles Rowatt M'Millan intimated his willingness to depart from the decree in absence, and to accept whatever sum might be found to be the balance of the trust-funds. He further admitted that Mrs M'Millan at her death had been survived not only by him, but by a daughter, Mrs Davies, wife of John Davies, residing in Liverpool. But he maintained that as she had died before her father, her family were excluded from any interest in the trust-fund. The trustee however thought it right to call her representatives as defenders, for their interest.

Mrs Davies' children, four in number, and John Davies, their father and administrator-in-law, appeared and lodged a condescendence and claim, and inter alia pleaded—“The trust-disposition and settlement and relative deed of alteration executed by Mr and Mrs M'Millan fall to be construed according to the law of Scotland.”

Messrs Mitchell & Baxter, Charles Rowatt M'Millan's assignees, pleaded inter alia—“(1) The trust-disposition and settlement having been executed by the husband in England, he being a domiciled Englishman, it and the relative deed of alteration must be construed according to the English law. (2) The succession under the trust-disposition and settlement and relative deed of alteration did not vest until the death of the husband. The parties having been domiciled in England at the date of the execution of the said deeds, and up to the time of their death, the succession must be ruled by English law.”

The Lord Ordinary pronounced the following interlocutor:—

“ 14th July 1875.—Having considered the cause, Allows the claimants Edward Davies and others to add a statement and plea as to the law of England as affecting the construction of the deed in question: Finds that the deceased Mrs Alexander Rowatt Forbes or M'Millan, having been a domiciled Englishwoman from the date of her marriage to the now deceased Peter M'Millan in 1826 till her death, the effect of the provisions contained in the trust-disposition and settlement, and relative deed of alteration by her, dated in 1830 and 1835 respectively, bearing on the rights of the respective claimants to the fund in medio, must be determined according to the law of England; and directs the case to be enrolled for further procedure; reserving in the meantime all questions of expenses; and grants leave to the said claimant Edward Davies to reclaim against this interlocutor.

Note.—The late Mrs Forbes or M'Millan had the power of disposal of a sum of £500, which the deceased Charles Rowatt, surgeon in Campbelton, by his disposition and settlement, bound his grandson to pay to her heirs, executors, and assignees, after her death; and the fund in medio, amounting to £280, is the balance of this sum which has been recovered, and which is now to be applied in terms of the provisions contained in the testamentary deeds executed by Mrs M'Millan, and which consist of a trust-disposition and settlement of 1830, and a relative deed of alteration of 1835.

The competition arises between Messrs Mitchell & Baxter, W.S., as the assignees of Mrs M'Millan's only son, who claim the whole fund, and Edward Davies and others, claiming one-half of the fund, the children of a daughter of Mrs M'Millan, who survived her mother, but predeceased her father, at whose death the fund was appointed to be divided. By the fourth purpose of Mr and Mrs M'Millan's deed of alteration, she

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directed that on her husband Mr M'Millan's second marriage or death “the said principal sum shall be divided among the children to be procreate of the marriage between us, share and share alike, or survivor of them, &c.

Messrs Mitchell & Baxter claim the whole fund, as representing the sole survivor. The other claimants maintain that on a sound construction of the deed it was an implied condition of the bequest that in case a child should not survive the period of division, but should have issue, the children of such child should take their parent's share, and accordingly they claim the one-half of the fund to which their mother would have had right had she survived her father.

If the effect of the testator's deeds were to be determined by the law of Scotland, the fund would be divisible, as the claimants Davies and others contend. The parties differ as to the legal construction of the deed according to the law of England; for while Messrs Mitchell & Baxter, as representing Charles M'Millan, allege that the deed must receive effect according to its literal interpretation, as a gift of the whole fund in favour of the survivor, the other claimants maintain that according to English law there is an implied condition in their favour which gives them right to the share their mother would have taken by survivance of their grandfather. They maintain, however, in the first place, that the deed must be construed according to the law of Scotland.

I am of opinion that this contention is not well founded. It is admitted that the testator was domiciled in England, and some special ground must be established for the view that her settlements are now to be interpreted by the law of this country, with the effect of introducing as part of their provisions the conditio si sine liberis decesserit, an implied condition which is not expressed in the language used, and no such ground appears to me to exist. The deeds, though drawn in the Scotch form and executed by the testator during temporary visits to this country, are not expressed in technical language, which can only be properly understood or construed by a Scotch court. It was no doubt thought advisable to have the deeds prepared in this country, for they related to a fund secured in Scotland, and the right to which was vested in trustees, the majority of whom resided there; but the testamentary effect was simply to dispose mortis causa of estate with which the testator, a domiciled Englishwoman, was entitled to deal, and that not by the use of any technical legal phraseology peculiar to this country, but in language of plain ordinary signification. If the parties were agreed that the language used—which is of this character, and certainly not technical, at least in regard to the truster's directions as to the disposal of the fund in question—would be interpreted literally, and so receive its literal effect according to the law of England, it would follow, according to the rule settled in the case of Thompson's Trustees, 14 D. 217, that this Court should now settle the interpretation of the deed; but the parties differ as to this, for while Messrs Mitchell & Baxter allege that according to the law of England the provisions of the deed must be interpreted in accordance with the language used, the other claimants maintain that, according to English law, a condition in their favour is implied though not expressed, similar to the conditio si sine liberis decesserit of the Scotch law. It is thus necessary to ascertain the sound construction of the deeds according to the law of England.”

Mrs Davies' children reclaimed, and argued—The subject in question was heritable, because (1) the power given was a power to dispose of money heritably secured; and (2) it was in fact so heritably secured. If so, the law of Scotland alone could rule. In any case the deeds were prepared and executed in Scotland and in Scotch legal phraseology, and so the presumption that the law of domicile prevailed was overturned.

Authorities— Trotter v. Trotter, 3 W. and S. 407; Hardman v. Ronguet's Trs., 9 July 1845, 4 D. 1505; Rainsford v. Maxwell, 6 Feb. 1852, 14 D. 450; Ferguson v. Marjoribanks, 1 April 1853, 15 D. 637; Sinclair v. Alexander and Others, 18 Dec, 1851, 14 D. 217; Storey's Conflict of Laws, sec. 479; 4 Burge's Comms. 590; Machargo v. Blain, M. 4611.

M'Millan's assignees argued—Under the original settlement the subject was moveable, and no act of administration by the trustees could alter its character. The direction to secure, if required, did not operate a change. The fund was never in the possession of the trustees except as money. If the subject was moveable the lex domicilii alone could prevail.

Authorities— Earl of Stair v. Dalrymple, 29 Feb. 1846, 6 D. 904; Purvis' Trs. v. Purvis' Exrs., 23 March 1861, 23 D. 812; Anstruther v. Chalmer, 2 Simon's Eeports, 1; Norton's Trs. v. Menzies, 4 June 1851, 13 D. 1017; Whyte v. Whyte, 28 June 1860, 22 D. 1335; Durie v. Coutts, M. 4624; Westlake's International Law, sec. 329.

At advising—