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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Houston or Mitchell and Others [1877] ScotLR 15_102 (17 November 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0102.html
Cite as: [1877] ScotLR 15_102, [1877] SLR 15_102
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SCOTTISH_SLR_Court_of_Session
Page: 102↓
Court of Session Inner House Second Division.
Facts:
A testatrix disposed of the residue of her estate by giving two-fifths to her nephews and three-fifths to her nieces, the share of any one predeceasing her to be divided equally amongst the whole surviving nephews and nieces. The principal sums were to be at her nephews' disposal as they attained majority, “but my nieces' shares to be invested on good security, and in the event of any of them being married, to be settled on themselves and their children.” In the event of any of her nieces dying after her without issue there was a destination-over of her share, which was to go to the surviving nephews and nieces.— Held (1) that the nieces of the testatrix were entitled to the absolute right of the fee of the shares falling to them, and that the terms of the will imported no effectual qualification of that right; and (2) (distinguishing the case from Lady Massy v. Scott's Trustees, December 5, 1872, 11 Macph. 173; and Gibson's Trustees v. Ross, July 24, 1877, 14 Scot. Law Rep. 694) that there was no such indication of the intention of the testatrix as would induce the Court to direct each niece's share to. be invested for the purpose of excluding the jus mariti and preventing gratuitous alienation.
Miss Jane Houston died on the 15th of November 1853, leaving a holograph will dated the 8th of February 1847, which contained, among others, the following bequest—“The residue of my estate I bequeath to the children of my said deceased brother James Houston, and appoint the same to be divided among them in manner following, viz., I appoint two-fifths of said residue to be divided equally among my five nephews, sons of my deceased brother James Houston, and the remaining three-fifths of the said residue I appoint to be divided equally among my four nieces, daughters of my said deceased brother James Houston; and should any of my said nephews or nieces not survive me I appoint the share that would have otherwise fallen to said nephew or niece predeceasing me, to be divided equally among the whole of the surviving said nephews and nieces. The principal sums or shares falling to my nephews under this will be at their own disposal as they severally reach the age of twenty-one years; but my nieces' shares is to be invested on good security, and in the event of any of them being married, to be settled on themselves and their children. The interest of both nephews' and nieces' shares to be spent on their education till they reach the age of twenty-one years, or allowed to accumulate till then for their behoof, as my executors may see fit; and in the event of any of my nieces dying after me without leaving any children, the amount settled on her shall revert equally after her death to the remaining branches of the family of my deceased brother James Houston, viz., to be divided equally among the surviving nephews and nieces, and the children of such of them as may have died leaving children, in which case said children to be entitled to the parent's share.” The will further contained the following nomination of executors—“And I hereby appoint [four were I named], or such of them as shall accept the office and be at the time in Great Britain, to carry this, my latter will, into effect, with power to my said executors, if they shall see fit, in case of the death of any one of them, to appoint another or others to succeed to the charge.”
After the death of the testatrix, her sister-in-law Mrs Helen MacDonald or Houston, one of the executors nominated by the will, accepted that office, and continued to exercise it until her death, when her son and executor-nominate Patrick Cruikshank Houston, M.D., who was the third party to this Special Case, entered into possession of the residue of the estate of his aunt Miss Jane Houston. The residue amounted to a sum exceeding £4000, and consisted entirely of moveables.
The Case was brought after all the beneficiaries had attained majority.
The first parties, who were Mrs Margaret Houston or Mitchell, wife of Arthur Mitchell, M. D., and her three sisters, the four nieces of the testatrix (Mrs Mitchell alone being married), maintained that under the will they were entitled absolutely to three-fifths of the residue of the estate, to be divided equally among them.
The parties of the second part, who were the only child of Mrs Mitchell, and his uncle Cruikshank Houston, the only nephew now interested
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in the succession, contended that the intention of the testatrix was that her nieces should enjoy merely a liferent of the three-fifths of the residue, the share or shares liferented by such as might die leaving issue being divisible among such issue, and the share or shares of such as might die without issue reverting to the remaining branches of the family; or alternatively, that the third party was bound to invest the shares of the first parties in their own names in fee, exclusive of the jus mariti of their husbands, and after their death in favour of their children also in fee, subject to the condition that the children's right of succession should not be defeated by any gratuitous act of their mothers, and failing children to Miss Houston's surviving nephews and nieces and the children of predeceasers in terms of her will. The question submitted to the Court was—“Whether the parties hereto of the first part, nieces of the said Miss Jane Houston, are vested each to the extent of one-fourth with an absolute right to the fee of the said three-fifth parts of the residue of Miss Houston's estate?
Argued for the first parties—The terms of the deed appointing the bequest of residue imported an express gift of fee, and there was nothing in the subsequent part of the deed to indicate an intention to restrict this gift. There was no doubt a direction to invest, and that the shares in the event of marriage should be settled on the nieces and their children with a destination-over in case there were no children. But this did not make them the less absolute fiars. Such a direction was merely a direction to pay the shares in the form of good securities— Allan's Trustees v. Allan, December 12, 1872, 11 Macph. 216, 45 Scot. Jur. 144. A direction to settle on the mothers and their children when there was nothing to import a liferent allenarly still left the mother fiar— Alexander v. Alexander, December 13, 1849, 12 D. 345 and 348. In the event of the nieces dying without issue, it was very doubtful whether the destination-over would have any effect, as it implied a substitution in moveables— Buchanan's Trustees v. Dalziel's Trustees, February 28, 1868. 6 Macph. 536. The case was distinguished from those of Lady Massy and Boss. In these cases there were elements showing the testator's distinct intention of limiting the legatee's right to a liferent— Massy v. Scott's Trustees, December 5, 1872, 11 Macph. 173; Gibson's Trustees v. Ross, July 24, 1877, 14 Scot. Law Rep. 694. In this case the testator had indicated no such intention, and the Court would not thus construe provisions capable of quite a different construction.
Authorities— Supra, and Dyer v. Curruthers, May 27, 1874, 1 Rettie 943; Scott's Trustees v. Stack, June 16, 1865, 3 Macph. 950.
Argued for the second parties—It was evident from the distinction made between the bequest to the nephews and to the nieces that the testatrix intended to limit in some way the right conferred on her nieces. The executors were really intended to be trustees. They were to carry the will of the testatrix into effect, and they had a power of assumption, and if necessary could have retained in their hands the nieces' shares for behoof of themselves and their children. The testatrix intended either to convey to her nieces a liferent allenarly and a fee to their children, or a right of fee to her nieces with a protected succession to their children, and failing them to others, which the nieces could not defeat. In either case the course followed in the cases of Lady Massy and Moss, referred to supra, would carry out the intentions of the testatrix.
Authorities— Massy v. Scott's Trustees, and Gibson's Trustees v.. Ross, supra; Ramsay. Beveridge, March 3, 1854, 16 D. 764; Damson, &c, November 10, 1876, 4 Rettie 597, 14 Scot. Law Rep. 71.
At advising—
The provision of the deed on which the question turns is as follows—[ reads bequest as above]. These are the terms of the bequest, and that it is a bequest in fee to the nieces of the testatrix, so far as the words I have referred to go, is beyond a doubt. But then there follow some qualifications of the bequest.
The deed proceeds—“And should any of my said nephews or nieces not survive me, I appoint the share that would have otherwise fallen to said nephew or niece predeceasing me to be divided equally among the whole of the surviving said nephews and nieces.” Now, it is quite clear that under that clause, had any of the nephews or nieces predeceased the testatrix, what, in eon-sequence of his or her death, would have fallen to the surviving nieces as well as nephews would have been the full and unqualified fee.
Then the deed goes on—“The principal sums or shares falling to my nephews under this will to be at their own disposal as they severally reach the age of twenty-one years; but my nieces' shares to be invested on good security.” Now, no doubt that raises an inference that while the nephews were to have their shares at their own disposal on attaining majority, the nieces were not, but were to be limited in their enjoyment of their shares in some way which is not pointed out. But it is a sure inference of the intention of the testatrix, which, so far as I can see, she has not carried out to any practical effect. Then she further adds—“And in the event of any of them [the nieces] being married, to be settled on themselves and their children.” Whatever may be the effect of that provision, at all events it is only to take effect in the event of any of the nieces being married, and, as I think, married before attaining the age of twenty-one. A direction to invest on good security neither infers a liferent nor a restriction of the fee. And a settlement “on themselves and their children” would not restrict the bequest of fee to the nieces, because the gift being an express gift of fee, it cannot be qualified unless there follow words leading necessarily to an opposite result.
Then, finally, after a provision for the disposal of the income of the nephews' and nieces' shares prior to their attaining the age of twenty-one, there comes this clause—“And in the event of any of my nieces dying after me without leaving
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On a consideration therefore of the whole terms of this settlement, I am of opinion that there is no case for liferent at all. The settlement is entirely a settlement of fee, and there are no provisions of any kind which could restrict the enjoyment thereof to a liferent interest. Nor is it to be assumed that either the children of the nieces or the persons substituted to them were more favoured by the testatrix than the nieces themselves. The tendency of decision in all cases of this class is rather against restriction, and when there is a clear indication of the testator's intention to give a fee to persons marked out, the presumption is in favour of that fee being unqualified.
The only real question in the case appears to me to be, whether there is a protected succession? But even admitting that the fee, unquestionably given, was still to be so settled as to prevent the fund being affected by gratuitous deeds, there is, I think, no reason for supposing that the testatrix meant anything more, or to impose restrictions which she has not in terms imposed. It is said that Lady Massy's case ( 11 Macph. 173; is analagous to the present. But that is a case the principle of which I should not be inclined to carry farther than was there done. In that case there were two or three material elements which do not occur here. Lady Massy was married at the date the will was executed. A power of disposal, failing issue, was expressly conferred on her; and failing issue and disposal by her, the provision was to go to her own heirs, to the exclusion of those of her husband. In these circumstances there was a presumption of intention to limit or qualify the bequest which there is not here. The intention was apparent to protect the right of Lady Massy's children, but the machinery was defective, and the Court interfered to require such a settlement to be made as would give effect to the intention and protect the children's right of succession. But I do not think that the Court is entitled to interfere to supplement defective machinery unless the testator's intention is very clear indeed.
Lady Massy's case was followed by the case of Ross ( 14 Scot. Law Rep. 694). But in that case also there were clear words pointing to a restriction of the mother's right to one of liferent, and the Court gave effect to the testator's clear intention by requiring an appropriate settlement to be made.
But here there is not expressed, and there is no clear indication that the testatrix intended, any restriction upon the full right of fee conferred on her nieces, either for the benefit of their children or of the other substitutes. To ask the Court to protect the rights of succession of substitutes when the testator has shown no intention that they should be protected, is to ask the Court to step beyond the limit of its functions.
There is certainly a considerable amount of obscurity in the terms of the deed, but it has, I think, been caused by the testator's use of language, the full force and effect of which she did not properly understand, and not from any clear intention of limiting or restricting the rights conferred in the manner contended for by the second parties to this case.
The question to be solved relates exclusively to three-fifths of the residue of the estate belonging to the testatrix, which consists entirely of money. The question is whether the first parties to the case, nieces of the testatrix, are now entitled absolutely to the three-fifths referred to of the residue of the testator's estate, or, as contended for by the other parties, to only a liferent of these three-fifths. It was, failing the contention as to a liferent, maintained that the three-fifths of the residue in question, in place of being paid over to the first parties as belonging to them absolutely, must be settled upon them in such a way as to exclude the jus mariti of their husbands, and secure it from their gratuitous disposal.
Now, in regard to the first parties having merely a right of liferent in the disputed fund, I can find nothing in the will to warrant any such conclusion. I think it contains unmistakeable indications to the contrary. In particular, it contains words of bequest and division of the capital. So far, therefore, as concerns the suggestion of a liferent, I have no hesitation in rejecting it; and that, according to what is stated in the case, disposes of the whole difference which has arisen between the parties.
But it was pleaded alternatively at the debate that the disputed fund must be secured in some such manner—it was not said how—as to exclude the jus mariti of the husbands of the third parties and secure it from gratuitous alienation; and this matter, according to some views that may be taken of it, is not unattended with difficulty; but after careful consideration I am satisfied that it ought not to stand in the way of the first parties being found entitled to payment absolutely of the fund. The will contains no express direction to the effect that the jus mariti of husbands is to be excluded. It merely says that the fund is to be settled on the nieces of the testatrix and their children; but supposing this were done in literal compliance with the direction, the jus mariti of the husbands would not be thereby excluded. And, again, a disposal of the fund simply to the nieces and their children would, as it appears to me, give the fee of the capital to the nieces themselves. It might no doubt be possible by means of a trust, or through the medium of something like an entail, to secure and protect the fund from husbands and gratuitous alienations, but no such modes of security are prescribed or enjoined by the testatrix, and I am unable to see how they can be resorted to without making a new will for her.
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Nor am I satisfied that qualified restrictions, such as those which were prescribed by the Court in the cases of Lady Massy, December 5, 1872, 11 Macph. 173, and of Gibson's Trustees v. Ross, 14 Scot. Law Rep. 694, are called for in the present case. The case of Gibson's Trustees is so very different in its circumstances as really to have little or no application. And in Lady Massy's case there was an ulterior destination of a character so different from anything that is to be found in the present as to prevent it being a precedent. It appears to me that the case of Allan's Trustees v. Allan, December 12, 1872, 11 Macph. 216, where Lord Cowan took occasion to remark on the case of Lady Massy, is much more in point, and there the Court held that as there was a clear direction to the trustees to pay to the beneficiaries, and as the Court could not consistently therewith create a trust, which was the only mode of rendering their provisions inalienable, they were entitled to receive payment on their own receipts.
Adopting the principle of decision given effect to in that case, I am of opinion with your Lordship that the question submitted to the Court in the present case ought to be answered in the affirmative.
The Court answered the question in the affirmative.
Counsel for Houston or Mitchell and Others (First Parties)— Kinnear—Thomson.
Counsel for Second and Third Parties— Rutherfurd—H. Johnston. Agents— Gibson-Craig, Dalziel, & Brodies, W.S.