Scottish Court of Session Decisions

George Findlay, hatter in Aberdeen, died on 15th May 1885 leaving a holograph will in the following terms—“I, George Findlay, with the full intention if spared to make a proper will fully detailed, do hereby appoint Mr George Findlay Shirras, my nephew, and Mr Patrick Morgan, 11 Richmond Terrace, to be trustees on my estate, and my son George to be trustee when the age of twenty-one, but to be present at all meetings till then but not to vote only to express his wish but to have full power @ twenty-one. The trustees to give my sister Ann Findlay the sum of forty pounds per annum during her lifetime, George Findlay, my son, and Jessie Ann Findlay, my daughter, to have share and share alike both of heritable and moveable, or the survivor of them. George Findlay. P.S.—The trustees to have a gift of nineteen guineas each.”

At the date of the will the testator was a widower, his wife having died in 1875, and the two children named in it were his only children. In 1884 he contracted a second marriage, and by an antenuptial contract he bound himself to make payment of an annuity of £150 to his second wife in case she should survive him, and in security of the annuity he assigned to trustees certain stocks and shares of the value of £3000 or thereby. In the event of the wife surviving the trustees were directed on her death, leaving issue, to realise the trust funds and divide the proceeds among all the children of both marriages equally, share and share alike; and it was declared that the provisions of the contract so far as in favour of the children of the marriage should be in full satisfaction of legitim, executry, and everything else they could claim through the father's decease, goodwill excepted. In the event of his wife's predecease the trustees were to refund the stocks and shares so handed to them, and that whether there were any children of the marriage or not.

Findlay died about six months after his second marriage, survived by his wife. She gave birth a few months after her husband's death to a posthumous daughter. She shortly thereafter died.

Findlay's moveable estate was worth about £5066. He had two heritable properties, the title to the first of which, a house in Victoria Street, Aberdeen, was taken in 1867, in favour of him and his first wife in conjunct fee and liferent, but for her liferent use only, and after the death of the longest liver, of the children procreated or to be procreated between them, equally, share and share alike, in fee. The title to the other, a house in Aberdeen, let to tenants, and which was purchased in 1874, was in favour of Findlay, the testator, and his heirs and assignees whomsoever.

Findlay's trustees raised a multiplepoinding to determine the rights of his children in his estate. Mr Harry Cheyne, W.S., was appointed curator ad litem to Jane, the posthumous daughter, and claimed a third of the estate, heritable and moveable. George and Jessie claimed share and share alike of the estate to the exclusion of Jane.

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Both parties founded on the holograph writing referred to, the curator ad litem for Jane pleading—“Upon a sound construction of the testamentary writing of 9th March 1878, in the circumstances which have occurred, the pupil defender is entitled to an equal share of the whole estate conveyed by the said testamentary writing, along with the pursuer George Findlay and his sister Jessie Ann Findlay, and the claimant, as curator ad litem to the pupil defender, is therefore entitled to be ranked in terms of his claim.”

Argued for Jane—The will was holograph, and in the form of a direction to trustees, and was therefore open to construction— per Lord Young in Mitchell's Executor v. Smith, &c., July 7, 1880, 7 R. 1090. In proceeding to construe the will it could not be disputed that in cases where a father had died before any child was born to him, a will in which no provision was made for the event of the birth of a child could be reduced by a post natus—Colquhoun v. Campbell, June 5, 1829, 7 S. 709; A's Executors v. B and Others, 1874, 11 S. L.R. 259—on the principle of the conditio si sine liberis decesserit—Cod. vi. 42, 30. The law showed favour to the child's claim, and it must be made “as plain as a pike-staff that the testator did not intend the succession to go to the child”—Lord Glenlee in Colquhoun's case—before a right so deeply founded could be disappointed. The same reasoning covered the case of a child in the position of the claimant here, and authority had sanctioned such a claim— Oliphant, Dec. 10, 1794, Bell's Fol. Ca. 126, cited ad longum in the opinion of the Lord President in Spalding v. Spalding's Trustees, Dec. 18, 1874, 2 R. 247. It was said that that authority, resting as it did on the case of Anderson—Anderson v. Anderson, 1729, M. 6590, rev. H. of L. 1 Craigie, 136—which had been reversed in the House of Lords, carried no weight. But although Lord President Campbell in deciding Oliphant's case had referred to Anderson's case as an analogy, the judgment in Oliphant's case rested on entirely different grounds, the claim in Anderson's case being a claim to share in a contract provision made by a father who was still alive at the date of the claim, the claim in Oliphant's case being a claim to participate in a succession as here. The remedy, it was said, open to a posthumous child was reduction; that was so where there were no other children and no means of ascertaining the father's mind to his children. Here his mind was plain, namely, to divide his whole estate equally among his children. Nor was the provision for children in the contract on the occasion of his second marriage a good ground of exclusion. In that contract all children—of both marriages—were equally favoured, and it was not a provision for all events, but only for the event of the father predeceasing the mother.

Argued for George and Jessie—(1) the authority of Oliphant's case had been denied; and (2) the principle to which the other claimant appealed, viz., that a father could not be presumed to intend to leave a child unprovided for, was inapplicable in a case in which he had provided for the child. In Spalding's case ( cit. supra) Lord President Inglis had pointed out that Oliphant's case had been rested on Anderson's, and that the reversal in that latter case could not have been known when the judgment in Oliphant's case was pronounced. His Lordship and the other Judges of the First Division in Spalding's case spoke of Oliphant's case as being therefore of no authority. Whatever might be the result in a case where a posthumous child was left destitute, the presumption of parental affection on which the whole case of the other claimant was founded could have no existence when, as here, the father had considered the possibility of his having more children, and had made provision for them if they should be born. That the posthumous child got less than the others was of no moment, for there was no presumption for an equal provision to all children. There was thus no ground for the application of the doctrine of implied will. If, again, the claimant pleaded the conditio si sine liberis decesserit. the result of that would be to reduce the will. The other claimant could cite no authority (unless Oliphant) for admitting the posthumous child to a share in the provision made nominatim for the others. If she had any remedy it must be by way of reduction.

The Lord Ordinary ( Kinnear) pronounced this interlocutor:—“Repels the claim for Harry Cheyne, W.S., curator at litem to Jane Elmslie Henderson Findlay; sustains the claim for George Findlay Shirras, curator bonis to Jessie Ann Findlay, and ranks and prefers them in terms thereof, and decerns.

“ Opinion.—… The curator ad litem maintains on behalf of this posthumous daughter that by an implication founded on the pietas paterna the will may be so construed as to entitle her to share in the general estate along with her brother and sister. The only authority cited in support of this claim is the case of Oliphant (Bell's Fol. Ca. 125), where the claim of a posthumous child was sustained to a share of a bond of provision destined to two elder children nominatim. But no weight can be attached to that decision, because, as was pointed out in the case of Spalding (2 R. 247), it proceeded upon the supposed authority of a previous case of Anderson which was reversed in the House of Lords. The case of Anderson is perhaps distinguishable, because what was proposed in that case was not to extend a will, but to extend a contract by implication. But if the judgment of the House of Lords cannot be taken as a direct authority against the present claim, it is at least sufficient, as was held in the case of Spalding, to displace the only authority which can be cited in support of it.

“The argument founded on implied will, therefore, would be unsupported by authority even if there had been no other provision for the ward. But it is a material consideration that she is in fact provided for by the marriage-contract. It is impossible to say, therefore, that the testator did not advert to the possibility of his having children by his second marriage. But if he has provided, whether by the will or by marriage-contract, for the contingency of such children coming into existence and surviving him, that appears to me to displace the assumption upon which alone they could be admitted to participate in an estate bequeathed nominatim to elder children.”