Scottish Court of Session Decisions

Two questions were raised in this case— First, Whether certain testamentary deeds executed by Mr and Miss Anderson were mutual, and therefore obligatory between them, to the effect that they could not alter them except by mutual consent? and Second, Whether various codicils executed by Mr Anderson after his sister's death, by which certain alterations were made on the original deeds, were within his power?

On 6th April 1857 Mr and Miss Anderson executed six deeds. By the first of these Mr Anderson, with consent of his sister, disponed to her his whole heritable estate in liferent if she should survive him, and to various trustees in fee. His trustees were to hold the same, after payment of his debts, in so far as his personal estate might not be sufficient for the purpose, for the purposes set forth in a deed of instructions subscribed by him and Miss Anderson of even date therewith, and as the same might be altered or revoked by any writing or deed subscribed by them during their joint lives, or if by the survivor, to the extent only authorised by the deed of instructions. The disposition also contained a clause to the effect, that in respect Miss Anderson had, by deed executed by her of even date therewith, conveyed to him her heritable estate after her death, whom failing to the foresaid trustees, he renounced his right to alter or revoke the same, in whole or in part, excepting with her consent, and in the event of his surviving her, to the extent particularly authorised by the deed of instructions. By a second disposition and settlement Mr Anderson disponed to Miss Anderson his whole moveable estate, and appointed her to be his sole executor and universal legatory; and in the event of her declining to accept of the said office of executor, he appointed the same persons whom he had appointed trustees under the disposition of his heritable estate to be his executors. This disposition also contained a clause to the effect, that in respect Miss Anderson had, by deed executed by her of even date therewith, disponed to him the whole of her moveable estate in the event of his surviving her, he renounced his right to alter or revoke the same, in whole or in part, to her prejudice, and declared that the same should not be revocable by him during their joint lives unless with her consent in writing. The third and fourth deeds were executed by Miss Anderson, and disposed of her heritable and moveable estate in the same way as her brother had disposed of his by the two deeds last mentioned.

The fifth deed was a mutual trust-disposition and settlement by which Mr and Miss Anderson disponed to the same trustees the whole moveable estate of the survivor, to be held by them for the purposes, and subject to the directions, contained in the after-mentioned deed of instructions. This disposition also contained a clause to the effect, that in consideration of the destination in favour of them respectively contained in the disposition and settlement of their respective estates, they renounced their right to alter or revoke the same, in whole or in part, and declared that the same should not be revocable or altered by them during their joint lives, unless by a writing subscribed by both of them, and by the survivor only, to the extent specified in the deed of instructions.

The sixth deed was the deed of instructions already referred to. It bore that Mr and Miss Anderson, on the narrative of the foresaid deeds, had resolved that their estates, heritable and moveable, under the reserved power therein mentioned, should form a fund to be called ‘The Anderson Bequest,’ their sincere intention and wish being that the same might give great relief to parties residing in the town of Borrowstounness from their poor-rates, and might assist respectable young people with a small sum of money

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on their setting out in the world. For that purpose they directed that their estates should, subject to the foresaid reserved power, be under the management of certain persons, who should act as a board of management or board of trustees. They directed that on the said bequest amounting to £20,000 sterling (which provision was afterwards modified as regarded the amount), or as soon thereafter as should be convenient, the board should expend the clear income thereof (10 per cent. being set aside as a sinking fund) for the following purposes, viz.—That one-half of the income should be laid out in the payment of pensions or annuities to persons of the description and in the order of preference therein specified. They further directed that the board should lay out the other half of the income of the bequest for the purpose of effecting two classes of insurances on the lives of persons of either sex, as the board should from time to time consider proper. One class of insurances was directed to be the insurance of the lives of young healthy persons who might be at the time of effecting such insurances from twelve to twenty years of age, and residing in the parish of Borrowstounness, so as to receive payment of a sum not exceeding £150 on any one life when the person whose life to be insured should have reached any age in the option of the board from twenty-one to twenty-five years. The other class of insurances was directed to be insurances of the lives of young healthy persons who might be at the time of effecting such insurances twelve to twenty-one years of age, and residing in the parish of Borrowstounness, natives thereof to be preferred, so as to secure payment of a sum not to exceed £150 sterling on the death of the persons whose lives were insured. It was further declared, that in the event of the board finding it not practicable to carry the directions into effect in regard to the life insurance, they should lay out that portion of the bequest applicable to the life insurances in the increase of the number of the recipients of the pensions. The parties reserved full power to alter or revoke the deed of instructions, in whole or in part, by any writing or deed to be subscribed by both during their joint lives, and to the survivor to alter or revoke the deed of instructions to the extent of one-fourth part of the heritable and moveable estate of the predeceaser or survivor of them, and to the full extent of the liferent of the estates of both from the death of the predeceaser; and they further reserved power to the survivor to alter or enlarge the instructions and powers of the board, but that only so as the principal design and object of the bequest should not be interfered with or in any way altered.

Miss Anderson died on 16th April 1862. She was survived by her brother, who died on 14th April 1870. Miss Anderson left moveable estate to the amount of £1829, 9s. 5d., to which her brother succeeded under her settlements. The estate left by Mr Anderson, and falling to be administered under the trust, amounted to about £7870, 12s. 1d.

After Miss Anderson's death Mr Anderson executed several codicils, the provisions of which gave rise to this case. The first of these was a codicil executed by him of date 16th March 1869.

By it he directed his trustees to complete the building of the school and dwelling-house which he intended to erect in the garden belonging to him at Providence, Borrowstounness, in the event of the same being begun and not completed during his lifetime. He further exercised the abovementioned reserved right to dispose of the estate to the extent of a fourth.

On 16th July 1869 Mr Anderson executed another codicil, by which, on the narrative that since the date of the codicil of 16th March 1869 he had so far proceeded with the erection of the schoolhouse and dwelling-house therein referred to, and which he hoped to see in operation in his lifetime, his wish being to assist in supplying good education to boys and girls, and that it was proper that he should supply so far for the proper support of the principal teacher and his or her assistants after his death; therefore, without prejudice in any way to the legacies and provisions to his surviving sister and her family, and other family relations, he directed his trustees or the board to complete the said schoolhouse, teacher's house above the same, and school furniture of the same, should they not be completed in his lifetime, and to keep up and maintain the same in proper repair and condition. He further directed that a sum not exceeding £50 per annum should be expended in payment of salaries to the principal teacher and any assistants that might be found necessary, with a sum not exceeding £3 sterling annually for prizes to the best scholars, to be called the ‘Anderson Prizes.’ He further directed that the dwelling-house in connection with the schoolhouse should be occupied by the principal teacher and her or his family during the tenure of her or his office, as part of the emoluments of office, and that he or she should also have a salary at the rate of £20 per annum at least. He further directed that the assistant teacher or teachers, if more than one teacher should be found necessary, should each receive a salary at the rate of £10 per annum at least. He further directed that Mrs Agnes Paul should be nominated principal teacher, and her daughter Miss Charlotte Paul assistant teacher, and that she should succeed her mother in the office of principal teacher. He further directed that the instructions regarding the school should be carried into effect immediately after his death, and that one-half of the salaries of said principal teacher and assistant teacher should be paid out of the sum set apart for the payment of annuities or pensions in the deed of instructions, as soon as the trustees or board should find the same practicable.

The erection of the schoolhouse and teacher's house was completed, and the school was opened, shortly before Mr Anderson's death. The school had been carried on ever since by Mrs Paul and her daughter, who had been allowed to occupy the schoolhouse, but they had not been paid any salaries. Mrs Paul and Miss Paul, as principal teacher and assistant teacher now claimed salaries from the date of Mr Anderson's death.

By another codicil the testator directed that the United Presbyterian Church, Borrowstounness, should be allowed in perpetuity the free use of the schoolhouse, &c., for the accommodation of their Sabbath School.

The validity of the directions contained in these two codicils with reference to the school and schoolhouse was in this case called in question as being an interference with and an alteration of the principal design and object of the bequest

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contained in the deed of instructions, which Mr Anderson had no power to alter.

The questions were raised in a multiplepoinding brought by Robert Whyte and others (Anderson's trustees).

The claimants were (1) and (2) Mrs Agnes Anderson or Whyte and others, beneficiaries under the deeds in question; (3) Mrs Paul and Miss Charlotte Paul, who claimed to be ranked and preferred to the fund in medio for the amount of salary provided to them respectively by the codicil of 16th March 1869, from 10th March 1870, when the school was opened, to 10th March 1879; (4) the Managers of the United Presbyterian Church, Borrowstounness.

It was pleaded for the two latter sets of claimants that although the provisions in favour of Mr Anderson and his sister respectively, contained in the various deeds, might be irrevocable, yet in so far as the further testamentary dispositions were concerned they were revocable by the survivor. And further, that the directions in question were not inconsistent with the powers of alteration reserved to the survivor by the deed of instructions.

The Lord Ordinary ( Adam) on 15th July 1879 pronounced an interlocutor, inter alia, repelling Mrs and Miss Paul's claim, and also that for the Church Managers. His Lordship added the following note:—

“ Note.—[ After stating the substance of the deeds and the facts ut supra]—It is not clear what is meant by the power given to the survivor to alter or revoke the deed of instructions ‘to the full extent of the liferent of the estates of both from the death of the predeceaser,’ but it seems to the Lord Ordinary that what was intended was to give the survivor a power of testing on such part of the income of the joint estates as might not have been used by the survivor.

The parties, both jointly and separately, executed various codicils to these deeds. These, however, with the exception of those after mentioned, do not call for any particular remark.

The effect of these settlements would appear to be that each party retained during life the control of his or her estate, but that upon the death of either the several deeds became irrevocable, and could not be altered by the survivor except to the limited extent provided for by the deed of instructions.

As regards the moveable estate of the parties, on the death of either, the whole vested in the survivor, and on the death of the survivor it was destined to the trustees, under the deed of instructions, to be administered under that trust.

As regards Mr Anderson's heritable estate, if he predeceased his sister a liferent of it was given to her, the fee vesting in the trustees for the purposes of the trust contained in the deed of instructions. If she predeceased him, the disposition became irrevocable, and in that event also it was destined on his death to the same trustees.

As regards Miss Anderson's heritable estate in the event of her predecease, it went to her brother absolutely, and so would fall under and be regulated by his settlements as a part of his heritable estate. If he predeceased her, her disposition of it to the trustees under the deed of instructions became in that event irrevocable. In this way the whole estates, heritable and moveable, of Mr and Miss Anderson were destined to these trustees.

[ His Lordship then stated the substance of the codicils as already narrated.]

It appears to the Lord Ordinary that Mr Anderson was not entitled to revoke the testamentary dispositions contained in the deed of instructions except to the extent of the power thereby reserved to him. He had taken a considerable succession under Miss Anderson's settlement, which had been executed by her in the faith that the disposition of the joint estates contained in the deed of instructions should receive effect. Mr Anderson was under an obligation therefore not to revoke that disposition. It cannot be said in this case that there was no mutuality of settlement. See Bell's Lectures, ii. 962.

With reference to the question whether the principal design or object of the bequest has not been interfered with or in any way altered by the directions with reference to the maintenance of the school and payment of the salaries of the teachers, the Lord Ordinary is of opinion that it has.

The principal design or object of the bequest is stated in the deed itself to be, to give relief to parties residing in the town and parish of Borrowstounness from their poor-rates, and also to assist respectable young people with a small sum of money on their setting out in the world, and the particular directions given to the board for carrying into effect this design or object are in entire conformity with it.

The expenditure of money in maintaining a school and schoolhouse and in paying the salaries of the teachers does not appear to be calculated to give relief to persons from their poor-rates, and therefore does not seem to be in conformity with that branch of the bequest. Neither does it seem to be in conformity with the direction to pay small sums of money to respectable young people on their setting out in the world.

It does not appear to the Lord Ordinary to have been the intention of the parties, at the time the various deeds were executed, merely that the money should be applied to some charitable or benevolent object, and that so long as the money was applied to a charitable or benevolent object it was immaterial what the object was. He thinks that it was intended to be applied to the particular object specified in the deed of instructions. It appears, therefore, to the Lord Ordinary that however desirable and praiseworthy Mr Anderson's object may have been in directing a portion of the money to be applied for educational purposes, yet that it amounts to an interference with and an alteration of the principal design and object of the bequest as set forth in the deed of instructions. It is not merely an alteration or enlargement of the powers of the board in conformity with that design or object. The Lord Ordinary therefore thinks that the directions in question are invalid, and cannot receive effect, and therefore that the claim of Mrs and Miss Paul for their salaries as teachers of the school must be repelled.

If the Lord Ordinary is right in holding that the board are not entitled to apply the trustmoney in the maintenance of the school and schoolhouse, he cannot find that the claimants, the managers or trustees of the United Presbyterian Church, are entitled to the free use of the schoolhouse in perpetuity. It may at any time become the duty of the board to sell the school-house.

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Their claim therefore must also be repelled.”

Mrs and Miss Paul and the managers of the United Presbyterian Church reclaimed, and argued—(1) Taking the deeds as they were, the provision in favour of the reclaimers was within the power of Mr Anderson as conferred by the trust-deeds and the deed of instructions. The general idea in those deeds was to benefit the inhabitants of Borrowstounness by raising the poor and making them independent of the poor-rate. The method suggested in the deeds was almost incomprehensible, and no better method could be adopted for the end in view than supplying education to the poor of the town, and so enabling them to help themselves. (2) The clause stating the deed to be irrevocable was not binding on Mr Anderson. The deeds here were in their nature revocable, and a declaration of irrevocability would not alter the nature of such deeds— Mitchell v. Mitchell's Trustees, June 5, 1877, 4 R. 800. There was here no onerosity which could prevent the survivor selling his own estate. To render such deeds irrevocable there must be a stipulation made in favor of parties, either nominatim or distinctly pointed out; there must be a jus quæsitum in favour of some one, and here the only people in whom there could be said to be a jus quæsitum were the inhabitants of Borrowstounness, which was much too vague and uncertain.

Authorities— Renton's Trustees v. Alison and Others, July 20, 1876, 3 R. 1142; Hogg and Others v. Campbell and Others, March 18, 1863, 1 Macph. 647; Craich's Trustees v. Mackie and Others, June 24, 1870, 8 Macph. 898.

At advising—