Scottish Court of Session Decisions

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Cite as: [1885] SLR 22_614, [1885] ScotLR 22_614

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SCOTTISH_SLR_Court_of_Session

Page: 614↓

Court of Session Inner House First Division.

Thursday, May 14. 1885.

22 SLR 614

Special Case—Macfarlane and Others and Laings.

Subject_1Succession
Subject_2Legacy
Subject_3Revocation.
Facts:

A testatrix directed her trustee to invest a sum of £200 for behoof of her brother, and to pay out the same to him in monthly proportions so long as the money lasted. In the event of the brother predeceasing, she directed the trustee to divide the sum so destined equally among his children. The brother predeceased. By a codicil dated subsequent to his death she “cancelled and annulled” the legacy to her brother, without mentioning his children, and by a second codicil, undated, left them each £20, — held ( dub Lord President) that the first codicil cancelled the interest both of the testatrix's brother and also of his children in the legacy of £200, and that the second codicil was a provision in substitution.

Headnote:

The deceased Mrs Sophia Laing or Thom, widow of the late William Thom, bookseller at Keith, died upon 26th August 1883. She left a trust—disposition and settlement of date 8th July 1873, by which she conveyed to Andrew Brander, farmer, near Elgin, her whole estates for the purposes mentioned in the deed. By the fourth purpose of the deed she directed her trustee “to invest in whatever way or manner he may think proper the sum of £200 for behoof of my brother James Laing … and out of this sum so invested to pay to him the sum of £3 per month, commencing the first monthly payment at the expiration of one month after my death and so long as the foresaid sum so invested shall last.” After providing for this fund being purely alimentary, she directed her trustee “to divide whatever balance is over of the sum so invested equally among the children of the said James Laing, and in the event of the said James Laing predeceasing me, 1 direct and appoint my said trustee, instead of investing the said £200, to divide the same equally among the children of the said James Laing and their heirs and successors.” The last purpose of the trust was that the trustee should after the other purposes were fulfilled convey the residue to the minister or kirk-session of the U. P. Church at Keith in trust for a charitable purpose.

James Laing did predecease the testatrix, dying on 21st May 1875. In October 1879 the testatrix executed the following codicil:—“I hereby cancel and annul the legacy bequeathed to the within designed James Laing, now deceased, but in all other respects hereby
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ratify and confirm the foregoing settlement.” She also executed a second codicil, which was written immediately below the other, but was undated, in the following terms:—“I hereby bequeath to Georgina, Christina, and Sophia Laing, my late brother's daughters, the sum of twenty pounds, free of legacy-duty.”

Questions arose whether the legacy of £200 provided by the clauses above referred to in the deed of settlement was cancelled by the first codicil to the extent of excluding the surviving children of James Laing from participating therein or in any part thereof. The present Special Case was accordingly presented by the Rev. William Hunter Macfarlane, minister of the United Presbyterian Church in Keith, and his session, as parties of the first part, and Sophia Laing and Georgina Laing, the only surviving children of James Laing, as parties of the second part.

The following questions were submitted for the opinion and decision of the Court:—“(1) Does said codicil cancel said legacy of £200 sterling, to the effect of excluding the said Sophia Laing and Georgina Laing, being the only surviving children of the said James Laing, therefrom? (2) In the event of the first question being answered in the negative, are the said Georgina Laing and Sophia Laing entitled to the legacy of £200 sterling between them, and also to the legacies of £20 sterling each?”

Argued for the first parties.—The first codicil “cancelled and annulled” the legacy of £200, while the second codicil was intended to give them each £20 in substitution thereof.

Argued for the second parties.—The words of cancellation, while they destroyed James Laing's interest in the £200, left that of his children intact, and they were entitled to take under both codicils, Scott v. Sceals, July 20, 1865, 3 Macph. 1130.

At advising—

Judgment:

Lord Mure—This is a short case, but the point raised is one not by any means free from difficulty. I think that the codicil dated October 1879, and written in the testatrix's own handwriting, is substantially a recall of the fourth purpose of the deed of settlement. By it the testatrix directed that a sum of £200 should be invested so that a payment of £3 per month might be made from it to her brother so long as the money lasted, and after directing that this provision is to be alimentary the deed provides as follows—“I direct my said trustee to divide whatever balance is over of the sum so invested equally among the children of the said James Laing, and in the event of the said James Laing predeceasing me, I direct and appoint my said trustee, instead of investing the said £200, to divide the same equally among the children of the said James Laing, and their heirs and successors.” Now, James Laing died in May 1875, and in October 1879 the testatrix makes a codicil in her own handwriting in these terms—“I hereby cancel and annul the legacy to the within designed James Laing, now deceased, but in all other respects hereby ratify and confirm the foregoing settlement.” By this codicil she clearly uses words cancelling the legacy she had bequeathed to James Laing, but it is only this legacy constituted by the fourth purpose of the trust-deed that she proposes to destroy, for she says that in other respects she ratifies and confirms her settlement.

But then at the same time she executes the second codicil, which, in the absence of anything to indicate otherwise, must be presumed to be of the same date as the first, and by it she bequeaths to Georgina, Christina, and Sophia Laing, her late brother's daughters, the sum of £20 free of legacy-duty. Now, I cannot view this second codicil in any other light than as a substitution for the first, and what I think the testatrix intended to do was to substitute the provisions in it for those which she had previously made. I think, therefore, that the first question falls to be answered in the affirmative.

Lord Shand—I am of the same opinion. Under the trust-deed the only interest which these children could have taken in the event of their father surviving the testatrix was the reversion of anything that might be left of the legacy. If he had lived a year after the testator, that legacy would have been reduced by £36, and the children would have got the rest of it divided among them. On the other hand, if he predeceased, the trustee was directed not to invest the £200, but to divide it equally among them. The brother predeceased the testatrix, and accordingly if she had still desired that the £200 should be divided among his children she had only to allow the trust-deed to take effect, for under it she had made full provision to that effect, but I think that she considered that on account of the death of her brother she ought to cancel that part of her trust-deed which related to him. That being so I can only read the words “I hereby cancel” as cancelling the only legacy which was at that time in existence, viz., the legacy of £200 in favour of James Laing's children. Then the second codicil clearly comes in I think as a substitution for it, and by it a legacy of £20 is left to these children free of legacy-duty. The whole question is one of intention, but I think we may fairly interpret this trust-deed and codicil in the way in which I have suggested. As to the case of Scott to which we were referred, I do not think it has any bearing on the question.

Lord Adam—The fourth purpose of this trust-deed deals with a sum of £200 which the truster desired to be invested and paid out to her brother so long as it lasted, in certain monthly proportions, in the event of his surviving her, but if he predeceased, then it was to be divided equally among his children. From this it appears that the truster at the time when she executed her trust-deed had in view the contingency of James Laing, her brother, predeceasing her.

Then we come to the first codicil. If that be read strictly as applying to James Laing it has no meaning at all. I think that the testatrix although she wrote it herself must have known that she did not require to cancel the legacy in favour of her brother—he being dead—but that she used these words to cancel the bequest in favour of his children, and she thereafter proceeds to make a separate provision by the second codicil.

I therefore agree with Lord Mure in thinking that the first question ought to be answered in the affirmative.

Lord President—I have some difficulty in concurring with your Lordships as to the manner

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in which these questions ought to be answered. It does not appear to me that there are sufficient words of revocation to destroy the legacy of £200 in favour of the children of James Laing.

The words of cancellation are—“I hereby cancel and annul the legacy bequeathed to the within designed James Laing.” Now, it would have been very easy to have added the words “and his children,” or “cancel the legacy of £200,” if it had been the testatrix's intention to cancel the legacy in favour of her brother's children. According to their strict meaning the only interest destroyed by these words of cancellation is that of James Laing. If James Laing survived he was by the terms of the trust-deed to have an allowance of £3 per month as long as the £200 set aside for him lasted. This was a distinct legacy in favour of James Laing, and if he lived two or three years his allowance would eat up the whole sum set aside for him. But the other event contemplated by the truster was that James Laing might predecease. In the one event the truster makes one set of arrangements, and in the other another. If he survives the testatrix the money is to be given to him in certain proportions while it lasts; if he predeceases her it is to be divided among his children.

Now, what this codicil says is that it “cancels and annuls the legacy bequeathed to James Laing.” That I think clearly takes out all James Laing's interest in this bequest of £200, but I cannot see that these words affect the interest of his children. I cannot find any expression to show that the testatrix intended that the £200 which was to be given to the children in oneevent was not to be given to them. In that view it is only almost an unnecessary codicil. It is said by your Lordships that James Laing being dead it is a very unnecessary codicil if it only cancels his interest in the legacy, and does not recal it altogether, but I have seen in my experience that old ladies very often make unnecessary codicils. I could forgive them for that if they did not make them unintelligible, with the result as in the present case of dividing the Bench as to their true meaning.

The Court answered the first question in the affirmative, and found it unnecessary to answer the second.

Counsel:

Counsel for the First Parties— J. A. Reid. Agents— Philip, Laing, & Trail, S. S. C.

Counsel for the Second Parties — Craigie. Agent— A. M. Broun, W.S.
1885