Scottish Court of Session Decisions

In 1863 David Nicoll, residing in Dundee, and Isabella Key or Nicoll, his wife, executed “from our affection to each other and for other good causes” a “mutual testament” whereby the husband bequeathed to the wife, in case she survived him, all his goods, gear, and debts which should pertain to him at the time of his death, and in like manner the wife bequeathed to the husband all the goods, gear, debts, and sums of money which should pertain to her at her death, and they constituted the survivor to be sole executor and universal legatory of the predeceaser.

The deed then proceeded thus—“Moreover, we the said David Nicoll and Isabella Key or Nicoll being desirous to settle the succession to our moveable and personal estate in the event of the death of the longest liver of us, Therefore we do hereby, jointly and severally and each of us, whichever of us may be the survivor, leave, legate, assign, and bequeath in that event to and in favour of James Nicoll, basket and toy merchant in Dundee, Charles Nicoll, engineer, Victoria Docks, London, Robert Nicoll, seaman in Dundee, William Marshall Nicoll, mill overseer there, and Helen Nicoll or Cooper widow of the deceased William Cooper, seaman in Dundee, and the survivors or survivor of them, equally among them, share and share alike, declaring that the lawful issue of any deceaser or predeceasers leaving lawful issue shall nevertheless be entitled to such share as their deceased parent or parents would have been entitled to if alive, all and sundry the whole goods, gear, debts, sums of money, household furniture and plenishing, books, bed and table linen, paraphernalia, and all other moveables whatsoever, including heirship moveables, that may pertain and belong or be resting-owing to the longest liver of us at the time of his or her decease, with the whole vouchers and instructions thereof, and all that has followed or may be competent to follow thereon: And further, we do hereby severally nominate, constitute, and appoint the said William Marshall Nicoll, whom failing, the said James Nicoll, and whom failing William Nicoll, son of the said James Nicoll, to be the executor of the longest liver of us respectively, with all the powers of the office. But these presents are granted always with and under the burden of all the just and lawful debts, sickbed and funeral charges, of the longest liver of us, and the legacy hereinafter appointed to be paid and delivered: And we ordain our said executor to pay and deliver the following legacy to the person after named and designed, viz., to Ann Nicoll Callender, presently residing with us, the sum of thirty pounds sterling,” and also certain household furniture and plenishings.

They revoked all former wills executed by either. “And we do hereby further reserve to us at any time during our joint lives, and to me the said David Nicoll if I shall be the survivor, to alter, innovate, and revoke these presents in whole or in part as may be thought proper; but declaring always that these presents in so far as not altered, innovated, or revoked as aforesaid shall be effectual though undelivered, wherever found, the delivery thereof being hereby dispensed with.”

James Nicoll and others, named in this portion of the will as beneficiaries, were relatives of the husband.

David Nicoll, the husband, died in September 1863 survived by his wife. He never exercised

Page: 272↓

his power of revocation, nor was there any joint-revocation by the spouses.

At the time of his death he was possessed of heritable property in Dundee, the annual rental of which was about £70. By a disposition and settlement dated 7th April 1862 he had conveyed this heritable property to his widow in liferent, and to his brother William Marshall Nicoll in fee.

The amount of the inventory of his personal estate was £80 sterling, and the pursuers of this action alleged that shortly after his death his widow received payment, in addition to this, of the sum of £150, which was the amount of a debt paid to her by her brother-in-law. Being of very thrifty and parsimonious habits, she, though living on the rents of the heritage and on the sum, of whatever amount, of her husband's moveable property, saved a considerable sum of money between his death in 1863 and her own in 1886. She was anxious that her husband's relatives should not benefit, by reason of the mutual testament, by any means she might leave, and determined to dispose of her property as she liked during her lifetime. In accordance with this she from time to time deposited sums of money in the British Linen Company Bank at Dundee on deposit-receipts in name of certain persons; one of these, which may be taken ns a sample, was for £300, the deposit-receipt being dated 16th July 1879, and being taken in the names of a Mrs Meldrum and her children Isabella and Mary Anne Meldrum, and the receipt was delivered by Mrs Nicoll to Mrs Meldrum, who deposited it with the bank agent at Dundee. With the object of making a further donation to Mrs Meldrum she opened three accounts with the Dundee Savings Bank, two in the joint-names of herself and Mrs Meldrum, and one in name of Mrs Meldrum alone. In so doing she acted to some extent on the advice of a neighbour, James Hill, whose name was placed in more than one of the various receipts.

Mrs Nicoll died, as above stated, in 1886, twenty-three years after her husband's death. The persons named in the mutual testament as executors of thelongest liver having all predeceased her, Robert Nicoll and the other children of William Marshall Nicoll got themselves decerned executors-dative to her qua general legatees under the mutual testament.

After the death of Mrs Nicoll the various deposit-receipts had been uplifted by the persons in whose names they were taken, and Hill by her desire paid out of one of the receipts in his name certain sums to two other persons whom she had told him she wished to give money to in consequence of their kindness during her illness.

This action was raised by the sons of William Marshall Nicoll as executors-dative qua general legatees under the mutual settlement, against James Hill, as trustee or mandatory of Mrs Nicoll, or otherwise as vitious intromitter with the estate of Mr and Mrs Nicoll, and as an individual, and also against the persons named in or who had received part of the money contained in the various deposit-receipts and the Savings Bank accounts, as vitious intromitters with the estate of Mr and Mrs Nicoll. The action concluded for count and reckoning of the defenders' intromissions with the estate of Mr and Mrs Nicoll, and payment of the balance due thereon, which they estimated at £1000.

The pursuers stated that the accumulations made by Mrs Nicoll were, owing to her saving habits, very considerable, and amounted to at least £1000, but all the visible estate at her death was the furniture and the proportion of the rents of heritage between Martinmas 1885 and her death; that what she had done was to attempt in concert with Mr Hill to dispose of her estate by mortis causa donations and otherwise, “so as to defeat the provisions of the mutual testament and the rights of the legatees under the same.”

The defenders stated that Mrs Nicoll had been advised that she could dispose of her property as she pleased during her life, though a question might be raised as to her power to make a new will, and that in accordance with this advice she deposited the sums in bank with the object of constituting in favour of the parties named in the receipts a donation inter vivos, or alternatively, mortis causa, these sums being her savings out of her alimentary liferent. They also averred that the mutual settlement, so far at least as concerned provisions in favour of persons other than the spouses themselves, was purely gratuitous, testamentary, and revocable.

They pleaded that the pursuers had no title to sue, and further—“(3) Upon a sound construction of the said mutual testament, the provisions with reference to the succession to the survivor of the spouses were testamentary, gratuitous, and revocable, and were pro tanto revoked by the donations libelled on. (4) Separatim, Mrs Nicoll had full power notwithstanding the said mutual testament to dispose of the savings from her alimentary liferent by gift inter vivos or mortis causa. (5) The said sums having been received by the defenders from Mrs Nicoll as gifts inter vivos or alternatively mortis causa, they are not bound to account therefor to the pursuers.”

The Lord Ordinary ( M'Laren) pronounced this interlocutor—“Finds that by their mutual testament David and Isabella Nicoll conveyed to trustees the estate of the survivor for the purposes there mentioned: Finds that Isabella Nicoll, the surviving spouse, was barred by implied contract from revoking, altering, or defeating the provisions of this trust, in so far as these dispose of her predeceasing husband's estate, but finds that the said Isabella Nicoll was entitled to dispose of her separate estate or savings effected from her income after her husband's death, and that either by will or donation, the mutual will being to that extent defeasible by her acts: Further, allows a proof, on a day to be afterwards fixed, on the question whether the deposits libelled were or were not the husband's estate, and grants leave to reclaim.

“ Opinion.—I am of opinion in this case that as regards the reciprocal destination by the one spouse to the other the settlement was onerous, and as regards the provision made for the succession of the survivor, that must be taken to be a testamentary destination by each spouse, revocable by each spouse as regards the particular estate which he or she conveyed. As regards the wife's money, I have really no doubt that she was perfectly entitled, being the survivor, to make a new will, or a mortis causa gift of any part of it. The mere circumstance that no power is reserved will not prevent her from doing so. But then as regards the husband's

Page: 273↓

estate I think the case is different, because while undoubtedly he gives his wife the fee, so that she might have spent the whole of the money, yet in so far as the money remained unexpended at her death, I think we must look to the words of reserved power of alteration. We find that the power of alteration is only given to the husband in the event of his being the survivor, and not to his wife. He has the power of alteration in regard to his own estate. It would follow from my opinion that there must be a separation of the estates, and on the question whether the husband's money was all spent in paying his debts and funeral expenses, or whether any part of it remains, I think that may be dealt with more satisfactorily by both parties putting in all documents in their possession than by a parole proof.”

The pursuers reclaimed, and argued—There was here no good ground of defence, because it was admitted that the wife had nothing but the move-able estate of her husband, which she took in fee, and the liferent of his heritage. There was a destination-over to relatives of his, of all that the survivor should be possessed of. The Lord Ordinary had held that this did not prevent the wife disposing of her savings either by will or donation. But savings were part of the estate she died possessed of; it was matter of contract on the part of the husband that all such estate should go at her death in a particular way, the wife was not entitled to defeat his intention by any gratuitous act. She might spend, but she could not test, and if not, neither could she donate mortis causa or inter vivos, for all there were equally gratuitous. This principle was recognised in Craich's Trustees v. Mackie and Others, June 24, 1870, 8 Macph. 898; Gentles v. Aitken, June 23, 1826, 4 S. 749; Wood, December 4, 1823, Fac. Col.; Hepburn v. Brown, June 6, 1814, 2 Dow 342; Kidd v. Boase, December 10, 1863, 2 Macph. 227; Arthur v. Seymour and Lamb, &c., June 30, 1870, 8 Macph. 928. The wife's power to revoke was excluded by the words of the deed, but yet it was admitted that what she did was an attempt to revoke per ambages.

The defenders replied—In the mutual testament the only two contracting parties were the spouses, and so far as they were concerned the deed was onerous, but its onerosity ended at the husband's death. She was after that quite entitled to do what she liked with the savings made by her own thrift out of what she received from her husband.

Authorities— Laing v. Brown, May 24, 1867, 5 Macph. 797; Melville v. Melville's Trustees, July 15, 1879, 6 K. 1286 Mitchell v. Mitchell's Trustees, June 5, 1877, 4 R. 800.

At advising—