Scottish Court of Session Decisions

Robert Nasmyth, surgeon-dentist in Edinburgh, died in 1870 survived by six children—four daughters and two sons. One of the daughters was unmarried, and one of the others was a widow. He left a trust-disposition and settlement dated in 1868, and a codicil dated in 1869. By his settlement he directed his trustees to realise his whole estate for certain purposes, of which the third direction of the fourth purpose was expressed as follows:—“For payment to my daughter, Mrs Mary Elizabeth Nasmyth or Miller, wife of John Robert Miller, Esquire, Surgeon in the Indian Army, of £3000 sterling, for her own sole and separate alimentary use, exclusive of the jus mariti and right of administration of her said husband, and payable to her on her own receipt or discharge without the consent or concurrence of her husband.” Each of his other children had a similarspecial legacy varying in amount, one of them being to the truster's son David Jobson Nasmyth after mentioned. The seventh head of the fourth purpose disposed of the residue of his estate, and was as follows:—“ Seventh, In the event of there being any free residue of my said estates above conveyed after answering the purposes above expressed, I direct my trustees to make payment thereof, in equal shares and proportions, amongst all my lawful children above named, the share of the said Mary Elizabeth Nasmyth or Miller being for her own sole and separate alimentary use, exclusive of the jus mariti and right of administration of her said husband.”

By the codicil he revoked and recalled the first to the seventh directions inclusive of the fourth purpose of his settlement, made certain alterations on the special legacies to his children, in particular increasing that to Mrs Miller from £3000 to £3500, this legacy to be for “her own sole separate alimentary use, exclusive of the jus mariti and right of administration of her said husband, and payable to her on her own receipt and discharge without the consent and concurrence of her husband,” and leaving no special legacy to David Jobson Nasmyth. By the sixth direction of the codicil he divided the residue as follows:—“My said trustees shall hold the whole free residue and remainder of my estates conveyed in the said trust-disposition and settlement, after answering the purposes therein and hereinbefore expressed, for behoof of my eldest surviving son, the said David Jobson Nasmyth, in liferent for his liferent use allenarly, and of his lawful child or children, if he should any have, in fee, …. and in the event of the said David Jobson Nasmyth predeceasing me without issue, I direct my said trustees to make payment of the said free residue and remainder of my said estates in equal shares and proportions amongst all those of my lawful children above named who shall survive me, and the issue of such as shall predecease me per stirpes et non per capita, the share of the said Mary Elizabeth Nasmyth or Miller being for her own sole and separate alimentary use exclusive of the jus mariti and right of administration of her said husband.” The codicil also contained this clause:—“And subject to these alterations and additions, I do hereby ratify and confirm the said trust-disposition and settlement in the whole heads, articles, and clauses thereof.”

Neither in the settlement or the codicil did the testator exclude the rights of husbands, present

Page: 517↓

or future of his daughters other than Mrs Miller from either their legacies or their shares of the residue.

David Jobson Nasmyth survived his father, and died unmarried in 1871.

From 1867—prior to the date of her father's settlement—till her death in 1872, Mrs Miller lived apart from her husband. She left a trust-disposition and settlement and a codicil, dated respectively in March and April 1871. For one eon, on the explanation that he had been provided for during her life, she made no provision. She provided for the others as follows:—“And I provide that in the event of my daughters Caroline Grant Miller and Mary Miller, and my sons Charles David and George Francis, surviving me” (which event happened), “my trustees shall divide the residue of my estate into six equal shares, of which they shall hold two for the benefit of my daughter Caroline, and two for the benefit of my daughter Mary, in manner after set forth: and my said two sons shall be entitled to the remaining two shares equally between them.” Her trustees having entered on the administration of her estate after her death, gave up an inventory of her moveable estate amounting to about £1800. She left no heritage.

Robert Nasmyth's trustees, in the course of the administration of his estate, had at various dates from 1st March 1873 to 10th May 1881, made payment of certain sums of money, amounting in all to £2171, to account of Mrs Miller's share of her father's residue, to her husband as in right of her share jure mariti.

In 1882 Mrs Miller's daughter Mary Miller, then Mrs Reynolds, and her husband, raised the present action against Mrs Miller's testamentary trustees, and also against her father John Robt. Miller, concluding for an accounting by the trustees, and for declarator that they were bound to apply for Mrs Reynolds' behoof two-sixths shares of the residue of her mother's estate, and pay her the annual income; further, for declarator that on a sound construction of Robert Nasmyth's will and codicil the share of the residue of his estate provided to his daughter Mrs Miller, the female pursuer's mother, was so provided to her “for her own sole and separate alimentary use, and exclusive of the jus mariti and right of administration of her husband,” the defender John Robert Miller.

The pursuers maintained that the one-sixth share of the fee of the residue of Robert Nasmyth's estate liferented by David Jobson Nasmyth had, on his death without issue, devolved on his daughter Mrs Miller as a separate estate in her person, and free from the jus mariti of her husband, and was therefore carried to the pursuers as beneficiaries under his settlement, and that her trustees were bound to account to them for their share thereof as part of Mrs Miller's estate. They therefore maintained that the payments to Dr Miller ought not to have been made, because the money that was paid him was part of his wife's separate estate.

The defenders maintained that the provision in regard to the residue in Mr Nasmyth's trust-deed having been revoked by his codicil, which made no provision for the disposal of the fee of the residue in the event (which had happened) of David Jobson Nasmyth surviving the testator and dying without issue, the residue had fallen into intestacy, and Mrs Miller's share thereof had passed to her husband jure mariti; and further, that that being so, Mrs Miller's estate, out of which much debt had required to be paid, was insolvent, and showed no residue for which they could be bound to account.

The pursuers pleaded—“(2) On a sound construction of Mr Nasmyth's settlement and codicil, the share of the residue of his estate provided to Mrs Miller was for her separate alimentary use, and exclusive of her husband's jus mariti and right of administration, and now falls to be accounted for by the defenders as her trustees and executors.”

The defenders (Mrs Miller's trustees) pleaded, inter alia—“(3) On a sound construction of Mr Nasmyth's settlement, and in respect that his son David Jobson Nasmyth survived him and died unmarried, he died intestate as to the fee of the residue of his estates, and said fee vested in the defender Dr Miller jure mariti; and, separatim, no part of said residue was provided by said settlement for Mrs Miller's separate use, free from the jus mariti of her husband.”

The Lord Ordinary pronounced this interlocutor:—“Finds that on a sound construction of Mr Robert Nasmyth's settlements, the fee of the residue of his estate is undisposed of in the event (which happened) of his son David Jobson Nasmyth surviving him and dying unmarried, and that the defender John Robert Miller was entitled to his wife's share thereof jure mariti; allows Mrs Miller's trustees to lodge their accounts within eight days, and the pursuer to lodge objections thereto, if so advised, &c.

“ Note.—If the question is to be regulated by the terms of the codicil alone, it was not disputed that in the event which happened the residue is undisposed of. But it is said that the revocation by the codicil of the seventh purpose of the settlement being only for the purpose of carrying out a disposition which has failed, the revocation ought not to receive effect. Onyon v. Tyrer, 1 P. Wms. 343; Tupper v. Tupper, 1 Kay and J., 665; Jarman on Wills, 3d ed., i., 156.

The rule to which the pursuer appeals has been applied where the second instrument has been found to be invalid from defective execution or otherwise. But there is no invalidity in the codicil, and nothing has occurred to interfere with its effect. The codicil contains an absolute revocation of certain directions in the settlement, including the direction for disposal of the residue, gives certain other directions in lieu of those recalled, and, subject to these alterations, ratifies and confirms the settlement. The effect is to strike out of the will the directions which are revoked, and to substitute in their place the new directions of the codicil.

By the revoked directions the testator had bequeathed special legacies to his various children, including his son David, and bequeathed the residue, if there should be any, in equal proportions amongst all his children, excluding the jus mariti of Mrs Miller's husband. By the codicil, after recalling these bequests, he gives special legacies to his other children, but none to his son David; and instead of giving the residue to be divided equally among all his children, he directs that it shall be held for behoof of his son David

Page: 518↓

in liferent allenarly, and for his children in fee, in such shares as he might appoint, or failing appointment, equally; and ‘in the event of David predeceasing’ him ‘without issue,’ that it shall be divided among his other children, subject to the same condition as before with regard to Mrs Miller's share.

The original direction with regard to the residue is therefore revoked absolutely to enable the directions of the codicil to receive effect. But by the codicil no interest in the residue is given to the children other than David, except in the event of his dying before his father without leaving issue. In that event they are conditionally instituted as residuary legatees. But David survived his father, and the conditional institution therefore fails to take effect.

It is true that Mr Nasmyth did not intend to die intestate, and a construction which should impute to him that intention ought not to be adopted. But it is more than construction to strike out of the bequest of residue to his other children the express condition that it should take effect ‘in the event of his son David predeceasing’ him. The words are explicit and must receive effect, nor is it legitimate to speculate upon what the testator would have done if he had foreseen the effect which, in the event which has happened, they must receive. He may possibly have contemplated that his son David's share in the event of his surviving him and having no issue should be divided among the other children, or he may have contemplated that David should have power to dispose of it by testament. But he has expressed no intention on the subject, and the Court cannot supply the defect by conjecture, but must leave the residue to pass to the children ab intestato. In this view it is not contended that Mrs Miller's share is free from the ius mariti.”

The pursuers reclaimed.

The Court, after hearing counsel, appointed the cause to be debated by one counsel on each side before the Second Division and one Judge from the Outer House.

Argued for the pursuers—Under these deeds there was no room for intestacy, for both deeds showed a clear intention to dispose of the whole estate. The intention was to give effect by the codicil to a new idea, and if that should fail, to leave the previous provisions standing. If it were possible to get the testator's intention by reading the two together, the Court were bound to give effect to that intention, because both deeds taken together disposed of the whole estate— Ogilvie's Trustees and Others, January 25, 1870, 8 Macph. 427, per Lord Ardmillan, 430. The codicil could not be upheld as a revocation if it did not also effect a disposition of every part of the estate. This was not pure and simple revocation, but merely revocation in favour of a new disposition on which it was conditioned. This was an example of the doctrine known to English law as “dependent relative revocation”— Earl of llchester, 7 Vesey, 348, per Alvanley C.-G., 372, and Grant, M. 17,378; Onyon v. Tyrer, supra; Quinn v. Butler, L.R., 6 Eq. 225; Jarman on Wills, 4th ed., i., 168; Williams on Executors, 8th ed., 150, 155–6, 189. “Predeceasing” without issue should be read as “dying” without issue, for it was absurd to provide for his predeceasing only, since in that case the testator might have made a new provision. He could not have meant to provide a liferent to a son whom he contemplated when making his will only in the light of a predeceaser. Another part of the intention of the testator which was clear was the exclusion of her husband's rights from Mrs Miller's share. The opposite contention would defeat this. The analogy of death-bed deeds was misleading, for there disposition and revocation were good against all the world but the heir-at-law.

Replied for defenders—They were not bound to present a theory of the testator's mind when he made these deeds. He might have had no intention at all as to his residue in the event which happened. The deeds were to be read as they were expressed. It was not legitimate, when words could plainly be read in a particular intelligible way, to twist them to another meaning to suit a supposed intention of the testator. Had the codicil stood alone it must have been given effect to as defenders intended. It was legitimate to appeal to the other deed if there were dubiety in the reading of the codicil, but to appeal to it here assumed a dubiety in the codicil which did not exist, and was reasoning in a circle. The English doctrine of dependent relative revocation was not recognised in the law of Scotland. In Scotland, where there was an express revocation, it took effect entirely independent of the deed to which it was attached. This was illustrated in two departments of the law—in Leith's Trustees v. Leith, June 6, 1848, 10 D. 1137; and in cases of death-bed deeds, the law of which was summarised by the Lord President in Kirkpatrick v. Kirkpatrick's Trustees, March 19, 1873, 11 Macph. 564.

At advising—