Scottish Court of Session Decisions

At advising—

Lord President—In this case I am quite satisfied with the judgment of the Sheriff-Substitute on all points. I think he has disposed of the case in a most satisfactory way, and on very sound and solid reasoning.

The only question of importance or difficulty is what may be called the question on the merits, viz., as to whether the £400 bond which was taken by Mr Scott in favour of his daughter Mrs Dewar was intended to form an additional provision to her, or to be in substitution of the provision he had made for her and her children in his settlement. Such questions are always more or less difficult, and must be decided on a review of the whole circumstances of the testator and his family, and in particular of the situation of the person who would be favoured beyond others by the double portion.

The provision made by Mr Scott in his will, which was dated 7th December 1866, in favour of Mrs Dewar is a different one from that in favour of his other daughters. The other daughters were each to get a similar sum of £400, but their provisions were given to them absolutely; whereas the £400 set aside for Mrs Dewar is settled in this way, that it is to be paid to trustees and is to be invested in heritable security, and the annual income paid to Mrs Dewar during her life for her liferent alimentary use allenarly, the fee to be given after her death to her children, if any, and failing them to her sisters. Now, there may have been various reasons for this difference in the terms of the two provisions, and it has been suggested that one reason was that the testator had a want of confidence in Mrs Dewar's husband, who was then alive, and that he arranged the terms of the bequest so as that his rights should be excluded. That is not, I think, perfectly clear, and we are not entitled to assume it; the exclusion of the husband's rights is only one part of the conditions of the settlement. Another motive was to secure that the fee should go to the children independently of the husband and also of the wife, and the children's rights remain secure under the deed of settlement unless a subsequent testamentary writing should deprive them of these rights.

Now, the other provision is in the form of a bond for money advanced by Mr Scott to the local authority of the parish of Bothwell; but though the money was advanced by him, the bond is in the name of Mrs Dewar—the granters “having borrowed and received the sum of £400 sterling from Mrs Agnes Scott or Dewar,” bind themselves to repay her, or her heirs or assignees, and they assign to her in security the special assessments which the local authority are authorised to raise. Some parole evidence was referred to as to conversations between the testator and his sons William and James Scott, but I attach no value to it; it is quite loose and imperfect as to what may have been Mr Scott's intention in taking the bond in this form.

In favour of the contention that the two provisions cannot stand together, and that the bond was intended to be substituted for the provision in the will, the most important consideration is that Mrs Dewar had received under her father's settlement a sum equal to that of each of her sisters, and that the sum in the bond is precisely the amount which is settled on her by the will. But these considerations, though undoubtedly of some weight, must yield to others which seem to me to counterbalance them. Mrs Dewar stood in a different position from her sisters; they were well married, and had husbands alive and prosperous. Mrs Dewar after her husband's death was in a different position, living with her father and being dependent on him. At his desire she had given up her interest in a policy of insurance on her husband's life, and her interest also in his furniture, and Mr Scott maintained her in family with himself, and at an expense of about £40 or £50 per annum. The interest of the two sums—that under the will and that under the bond—would not be so much as he was actually paying for her. She was perfectly dependent on him, and if after his death she was to have nothing but the one sum of £400 by the will or under the bond, she would be in a state of extreme poverty; and so it seems reasonable, and consistent with the condition of affairs, that he should have provided for this daughter to a larger extent than for her sisters. These are very important considerations in reaching the intention of the testator in this matter. He was also possessed of quite sufficient means to make the larger provision for Mrs Dewar, if he so wished, besides fulfilling the other purposes of his will. Taking these circumstances into view, and the fact that the bond was taken in the terms in which it was, and was kept in his custody until his death, I think the natural inference is that it was meant to take effect independently of the provisions of the will.

And there are two considerations beyond those I have named which strongly fortify this view. The first is that the gift in the will is to different persons from those in whose favour the bond is taken. The trustees under the will are to settle the £400 in fee upon the children of Mrs Dewar, and failing these upon her sisters. She has only a liferent interest. Under the bond the gift is absolute to herself. The second is, that if Mr Scott's intention had been what it is assumed by the defenders to have been, and if his purpose was to substitute an absolute gift for the provision in the will, it was certainly an odd method he took of effecting his purpose. It is said that in consequence of Mr Dewar's death it was no longer necessary to tie up the money in any way. If we assume that to be so, his natural course would have been to make a codicil to his will. I cannot help thinking that if he really had the intention which is ascribed to him, he might have revoked that part of his will which deals with Mrs Scott's provision, and might have given her an absolute gift, putting her in the same position as her sisters. The form he used was sufficient to create great doubt even on the face of the documents themselves, apart from the surrounding circumstances to which I have adverted, whether he did not make a separate provision for her.

On the whole of this question I entirely agree with the Sheriff-Substitute and the Sheriff.

Lord Deas—In regard to the question whether Mr Scott intended to give a double portion to his daughter or not, there is a great deal of parole testimony bearing in both directions. I doubt the relevancy of some of it. But to my mind the terms of the formal written bond, as contrasted with the terms of the formal written will, are conclusive. It is quite clear, if we take the writings ex facie, that the one provision is not substituted for the other, but that they are quite separate provisions to separate and distinct parties. The provision in the will is limited to a liferent to Mrs Dewar; the fee is given to her children. By the bond the fee is vested in Mrs Dewar; it is payable to her and to no one else. It is no doubt quite possible that notwithstanding the difference in the terms of the two documents the intention may have been to satisfy the one provision by the other. But it is open to great dispute whether the second case can be said to be a fulfilment of the first, the investment being, as I have stated, for behoof of a different party altogether. While there may be some doubt with regard to the matter of fact, I am quite clearly of opinion that in point of law the two provisions must be held to be separate.

Lord Mure—I have had no difficulty in coming to the conclusion that the bond for £400 is not to be held as operating a discharge of the provision for £400 in favour of Mrs Dewar under the will. The sums in each are the same, but in other respects it appears to me that the terms of the two documents are very different. The provision in the will is declared to be for Mrs Dewar's liferent alimentary use allenarly, and there are certain other restrictive provisions, with a destination-over in favour of her children. The trustees under the settlement are to make over that single provision to other trustees who are nominated specially for the purpose of administering it; so that the terms of the settlement in dealing with this sum are most distinct and anxious. When we turn to the bond it is quite different. In these circumstances the presumption is rather against a person so acting as to give the sum in the bond in substitution of that under the will, and I am not disposed to take it that it was so intended by Mr Scott. There are other strong reasons for inducing me to hold that both provisions must receive effect. Mrs Dewar was in poor circumstances. It is clear that at the date of her husband's death, subsequent to the execution of the will in question, she was in great pecuniary difficulties, and would not have been able to provide for her children had it not been for her father. The provision in the bond was thus the more intelligible, and I think was quite distinct and separate from the other, and must not be held to be in substitution of it, or to prevent it from likewise receiving effect.

Lord Shand—I have felt this question to be attended with considerable difficulty. One has to balance the considerations upon both sides in arriving at a conclusion upon the question of intention. It is not without some doubt that I have come to agree with your Lordships. On the one hand, the sums in the testamentary disposition and in the bond are the same. Secondly, there is this to be said against the theory of a double portion, that exactly the same sum has been bequeathed under the will to the other two daughters. In the third place, it is a little remarkable that although Mrs Dewar was living in the house with her father nothing was said by him as to the provision he had made for her, or proposed to make for her, when she agreed to give up her interest in her husband's estate. On the other hand, there was a distinct change in Mrs Dewar's circumstances in life after her husband's death. The other sisters were comfortably married and in a good position, pecuniarily and otherwise. Mrs Dewar had little or no means, and on her father's request had given up the claims she had on her husband's estate. In the second place, the sum in the bond was settled on Mrs Dewar herself, and not upon her children, as was the case in the testamentary disposition. In the third place, the difference in the form of making the two provisions is not to be left out of view, but I do not put so much strength upon that consideration as I think your Lordships are inclined to do. If the second provision had been contained in a codicil to the will, I am not sure that that would not have made a stronger case for the double provision than we have under present circumstances.