Scottish Court of Session Decisions

Anthony Inglis, engineer and shipbuilder in Glasgow, died at Partick on 10th January 1884, leaving a trust-disposition and settlement dated 8th August 1883, by which he conveyed to trustees his whole estate, heritable and moveable. He was survived by a son, John Inglis junior, and a daughter, Mrs Margaret Inglis or Breen, both of whom were trustees. The whole moveable estate left by the deceased amounted to £152,799. Under the provisions of the settlement Mrs Breen was entitled to an income of £3458 per annum in liferent, and also to a capital sum of £20,000. Shortly after the death of the testator a question

was raised as to whether Mrs Breen would accept the provisions in her father's settlement or claim legitim, and information was furnished to her by the trustees as to the estate of the deceased to enable her to make her election.

On 28th January 1885, in consequence of a resolution of the trustees passed at a meeting on 14th January preceding, calling upon Mrs Breen to make her election, Mr Kidston, Mrs Breen's law-agent, wrote to the agents for the trustees stating that Mrs Breen had “now decided to claim her legal rights in place of the provisions under the settlement.” The receipt of this letter was duly acknowledged by the agent for the trustees, and both letters were read at a meeting of trustees held upon 3d February following, and were engrossed in their minutes of meeting of that day. The trustees had up to this time, both at the meetings of trustees, at which Mr John Inglis, junior, and Mrs Breen were present, and in the letters written by their law-agents, dealt with Mrs Breen upon the footing that if she elected to take her legal rights she would be entitled to one-half of the moveable estate.

Upon 5th February 1885 Mr Roberton, the agent for the trustees, wrote to Mr Kidston in these terms—“As I believe that in electing to take at common law instead of under the trust-disposition and settlement, Mrs Breen has been going on the assumption that she is entitled to the whole of the legitim fund, I think it proper to acquaint you that Messrs Bannatyne, Kirkwood, M'Jannet, & France have advised Mr John Inglis junior that he is entitled to participate in that fund, and this without his being liable to collate the heritage.” It appeared from the evidence infra that Mr Inglis had consulted Mr France in March 1884, but that he did not tell Mr Roberton of the advice Mr France had given him until 3d February 1885. To this letter Mrs Breen's agent replied upon the same day—“I have to-day your letters of yesterday and this date. With reference to the latter, you expressed an opinion to Mrs Breen in which I concurred—that she would be entitled to the whole of the legitim fund—and her intention to make the election was based upon the assumption that that would be the case. I am also informed by Mrs Breen that in September last, at a meeting of trustees, when both she and Mr Inglis were present, her legal rights were explained to her and Mr Inglis to be a claim to one-half of the moveable estate as legitim. Had Mr Inglis given earlier intimation of his claim to participate in the legitim without collating, I would not have written in the terms of my letter to you of the 28th ulto. The trustees will therefore be good enough to hold Mrs Breen's election as still in abeyance.”

This was an action of multiplepoinding to settle the rights of John Inglis junior and Mrs Breen inter se. Mrs Breen claimed the provisions in her favour contained in her father's settlement, or alternatively one-half of the free moveable estate as legitim. She averred that her election was made in reliance on information communicated to her at various meetings of the trustees, at which the law-agents of the trustees, in the hearing and with the assent of her brother John Inglis junior, informed her that she was entitled under her legal rights to the full one-half of the free moveable estate, which was shown by the

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inventory to amount to about £150,000.

Mrs Breen pleaded that the letter of 28th January 1885 was written under essential error, and was timeously withdrawn, and that it was not authorised by her husband as her curator.

John Inglis, junior, averred that Mrs Breen had elected to take her legal rights, and was barred from claiming the provisions contained in the settlement. He claimed, upon the footing that Mrs Breen had elected to take her legal rights, the whole fund in medio under deduction of the amount of her legitim, as the same might be ascertained—or alternatively, the provisions in his favour contained in the settlement.

The import of the proof taken appears from the opinions of the Judges.

On 15th December 1886 the Lord Ordinary ( Trayner) found that Mrs Breen had made no election between her legal rights as one of the children of the deceased Anthony Inglis, and the provisions made in her favour by her father's settlement, and found that she was entitled to insist in the alternative claim made by her on the fund in medio.

“Opinion.—The claimant Mrs Breen claims to be ranked and preferred on the fund in medio in the present process alternatively for the amount of the provisions made -in her favour by the settlement of her father the late Mr Anthony Inglis, or otherwise for the amount of her legal rights as one of Mr Inglis' children. The only other claimant, Mr John Inglis, junior (the brother of Mrs Breen), objects to this alternative claim, on the ground that Mrs Breen some time ago conclusively elected to accept her legal rights, and is now barred from claiming under the provisions of the settlement.

“The late Mr Inglis died in January 1884, leaving a settlement by which he conveyed to trustees the whole of his estate, heritable and moveable, for the purposes therein stated. Both of the present claimants were named as trustees, and accepted office and acted as such. Some time was occupied necessarily in obtaining inventories and valuations of Mr Inglis' estate, but in September 1884 Mrs Breen was put in possession of the inventory of her father's moveable estate, as given up by his executors for confirmation, which showed that the moveable estate was of the value of £152,799 sterling. It is not admitted by Mrs Breen that this sum represents the whole of her father's moveable estate, for she has raised the question with the executors whether there should not be added to the amount already stated the share of the profits due to Mr Inglis (as she contends) gained on the contracts held by his firm and current at the date of his death. The executors, as well as the surviving partners of Mr Inglis' firm, have their answer to this claim, and I am not concerned with it further at present than to say that if Mrs Breen should be found to be right a very considerable sum—between £20,000 and £25,000—will fall to be added to the amount of Mr Inglis' moveable succession.

“From a comparatively early date in the history of the trust the question was under consideration whether Mrs Breen would accept the provisions under the settlement or claim her legal rights. With a view to her determining upon this question information of various kinds regarding the deceased's estate was from time to time required by her from the trustees, and (as some question was raised about this I think it right to add) was furnished to her as fully as the trustees were able to do. No election by Mrs Breen having been made or intimated, the trustees at a meeting held by them on 14th January 1885, at which Mr John Inglis, junior, was present, and Mrs Breen was not, resolved that an intimation should be sent to Mrs Breen to the effect ‘that in the event of her not declaring her election by 31st inst. the trustees will at once proceed to deal with and administer the estate in terms of the trust-disposition and settlement.’ That resolution having been communicated to Mrs Breen, she had a meeting with her agent, Mr Kidston, on 28th January 1885, to which, as regards what took place at it, I will afterwards advert. In the meantime it is enough to say Mr Kidston, on the authority as he understood of Mrs Breen, wrote the letter of 28th January 1885 to Mr Roberton, the agent for the trustees, stating that Mrs Breen had ‘now decided to claim her legal rights in place of the provisions under the settlement.’ The receipt of that letter was acknowledged on 29th January by Mr Roberton, and both letters were read to the trustees at their meeting on 3d February, and are engrossed in their minute of meeting of that day. It is upon that letter of 28th January 1885 that Mr John Inglis, junior, now bases his objection to the alternative claim of Mrs Breen.

“It was maintained for Mrs Breen that the letter written by Mr Kidston was not binding because it was not holograph or tested. In fact the letter was written by Mr Kidston's clerk and signed by him. I think there is nothing in this objection. I am not aware that writing is essential to a final and conclusive election in such a case as the present, or indeed in any case. On the contrary, there are cases where election has been inferred from facts and circumstances, and from actings and conduct of the person having power to elect. If the election had been intimated verbally by Mrs Breen to a meeting of trustees, or verbally to the agent who acted for and represented them, that would have been sufficient. To have such an election declared in writing is convenient and proper, because it saves questions as to the terms in which the election is declared, and affords ready proof of the election having been made. But the law does not require writing as a solemnity in making an election, nor proof in writing that it has been made.

“It was further maintained for Mrs Breen that even if the letter was not open to the objection just stated, still Mrs Breen was entitled timeously to withdraw it so long as nothing had been done on the faith of it—so long as things were entire; and that Mrs Breen had withdrawn the letter of 28th January by another of date 5th February, in which Mr Kidston intimated that Mrs Breen's election should be held ‘as still in abeyance.”

“If an election was well made and intimated on 28th January, I am of opinion that it was beyond the power of Mrs Breen to withdraw it. The general rule of law is stated by Lord Blackburn in the case of Scarf v. Jardine, L.R., 7 App. Ca. 360a—‘When once there has been an election to do one of two things you cannot retract it and do the other thing; the election once made is finally made.’ And obviously it must be so. For if the person who has the right of election, and

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validly exercises it, is entitled to withdraw from the election and do something else, it is not then a right of election which he exercises—he makes two elections; and there is no reason why the second election should not give place to a third, and so on. Nor do I see any just distinction (as was argued on behalf of Mrs Breen) between the case of an election having regard to rights in a succession and an election with regard to rights arising under a contract. The rule of law is the same where a right of election arises, independent of the circumstances out of which it has arisen. It was said that Mrs Breen might withdraw or depart from her election because nothing was done on the faith of it; that things were entire, and nobody injured by her withdrawal. If it be sound law that an election once made is final, then the question whether things are entire or not makes no difference; the election having been made it must remain. But in this case it can scarcely be said that things remained the same after the election and before its withdrawal. For, if Mr Inglis junior's other contentions in this case are sound (on which at present I offer no opinion) there were rights which at once emerged in his favour of the value of between £30,000 and £35,000. It might appear at first sight as if some countenance was given to Mrs Breen's contention by what was said by Lord Young in the case, of M'Fadyen, 10 R. 285. But that was a very special case, and the precise point here raised does not seem to have been argued.

“The point therefore remaining to be disposed of is whether, on 28th January 1885, Mrs Breen validly exercised her right of election in such a way and under such circumstances as to bar her from now challenging it or setting it aside. To make an election valid and binding it is necessary that the person making the election shall have before him clearly the two alternatives between which he is to choose. He must also have before him all the information necessary to enable him intelligently to make his choice. In short, he must have before him clearly what the two things really are between which he is to elect. Now, to see whether these conditions were fulfilled in the present case it is necessary to advert to some facts of which notice has not yet been taken. It appears that on several occasions in the year 1884 Mr Roberton, the agent of the trustees, had told Mrs Breen that if she resolved to take her legal rights rather than her conventional rights she Would be entitled to the whole legitim fund—the half of the personal estate—which he estimated at between £70,000 and £72,000, adding that, all things considered, if he were in her place he would ‘take the provisions at common law rather than the provisions under the settlement.’ This opinion as to the extent and value of Mrs Breen's rights at common law was one, I think, which Mrs Breen was entitled to accept at least as information on the subject to which it referred. So far as regarded its legal aspect it was the opinion of a person eminently qualified to give it, and as regards the value of the provisions in money it was an opinion or statement from the best authority. On that information therefore the state of Mrs Breen's knowledge was this, that if she elected to take her legal provisions she would get £70,000 or £72,000. A similar statement was made by Mr Roberton at some of the meetings of trustees

before 28th January 1885, and was repeated at the meeting of 3d February when Mrs Breen's letter of election was read. At all these meetings of trustees Mr John Inglis junior was present, ‘and did not utter a word upon the subject.’ I accept that as the fact on Mr Roberton's statement. Mr John Inglis junior, no doubt, says that he did say something on the subject, but I am satisfied he never said anything by way of objection or dissent from Mr Roberton's views—(1) because Mr Roberton could not have forgot it if such a thing had taken place; and (2) because the other trustees, so far as they have been examined, were at the time and are now distinctly under the impression that Mr Roberton's view was accepted by the meeting. The whole trustees had the idea conveyed to them (and whatever Mr Inglis may have said he did not distrust the trustees' belief and lead them to any doubt) that Mrs Breen's legal rights entitled her to the one-half of the moveable succession—that is, the whole legitim fund.

“Mr Roberton's view was repeated by his partner Mr Low at a meeting of trustees held on 9th September 1884. The proceedings at that meeting deserve particular attention. Mr John Inglis, junior, was applying to the trustees for a payment to account of his provisions under the settlement of his father, and a calculation was made at the meeting—Mr Inglis and Mrs Breen being both present—of the amount of the estate and the claims upon it to enable the trustees to determine what sum they were in safety to pay Mr Inglis. One of the claims mentioned at that meeting was the possible claim of Mrs Breen for legitim, and this was put down at £70,000, the estimated value of one-half of the moveable estate. No objection or dissent from this was stated by Mr Inglis, and it was decided to make him a payment to account on the basis of the calculation then made. That Mrs Breen's claim for her legal rights, as a possible claim against the estate, was distinctly and prominently before that meeting cannot be doubted. It is referred to in the minute of that meeting, which concludes in these words—‘Mrs Breen is requested to declare her election with as little delay as possible.’

“On the evidence, so far, I think it is established that not only was Mrs Breen informed by Mr Roberton, the agent for the trustees, but also heard it stated over and over again at meetings of trustees, without objection or dissent from her brother, that her right at common law was to the whole legitim fund, estimated at £70,000 or £72,000. It is also ascertained that in April 1884 Mr John Inglis junior had been advised by his law-agent that this view so reported was erroneous; that he meant to contest his sister's right to the whole legitim fund; and that he concealed both the advice he had received and his intention to act upon it until after his sister had made her election—which he with the other trustees was pressing her to make. I come now to the meeting which Mrs Breen had with her own agent on 28th January 1885, after receiving the notice from the trustees already alluded to, to the effect that her election must be declared by the 31st of that month. At this meeting Mr Kidston submitted a draft letter which he proposed to send to Mr Roberton. Mrs Breen made some difficulty about the terms of the letter, but ultimately, to quote her own words, ‘I said I bad

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not got sufficient information, but if Mr Kidston thought it would settle matters and put an end to all further trouble, I was quite willing to accept the half of the personal estate, as I had been advised. I asked him to state that.’ ‘I am quite positive that I asked Mr Kidston if he thought that by accepting the half of the personal estate it would end the matter. He thought so, and that was my reason for agreeing.’ It appears plain therefore that the election which Mrs Breen was making was between the one-half of the moveable succession and the provisions under the settlement. I am not surprised that Mr Kidston should have communicated Mrs Breen's choice in the language of the letter in question, for up to that time he, in common with Mr Roberton and every other person concerned (except Mr Inglis, junior), regarded the half of the moveable estate and Mrs Breen's legal rights as equivalent expressions. They had in a manner been diverted from a consideration of the question whether Mrs Breen's legal rights could in any case be less than one-half of the moveable succession, by the general acquiescence in the repeated statement of Mr Roberton that one-half of the moveable succession was the amount of her right. It was certainly the prima facie view of her right; and if Mr Inglis, junior, had desired to give his sister fair play and get from her a declaration of her election formed under a consideration of the subject in all its aspects, he should not have concealed the advice he had received nor the question he meant to raise. Apart from this, however, I think it cannot be doubted that if the expression in Mr Kidston's letter, ‘legal rights,' means something different from ‘the half of the personal estate,' then that letter was not authorised. It was the half of the personal estate and nothing else which Mrs Breen authorised him to accept for her; it was that she elected in place of her ‘provisions under the settlement.’

“It was maintained on behalf of Mr Inglis, junior, that the question on which Mrs Breen decided was her legal rights on the one hand and her settlement provisions on the other, and that error in law on her part as to the extent of her legal rights did not affect the election she had made. I am not prepared to adopt that view as stated. If a legal question affected the pecuniary value of her rights Mrs Breen could not elect between the opposing claims until she had had that legal question, with its possible result one way or other, explained to her. For, after all, it was between two sums of money or money's worth that she was choosing, and not between two abstract legal rights. But in my opinion the argument maintained has no place in the present case. The mistake, if there was one on the part of Mrs Breen, was in fact. But I think there was no mistake even in fact. Mrs Breen was, according to my view, electing between £70,000 or £72,000—the half of the moveable estate, and her rights under the settlement.

“I come therefore to this conclusion—If Mr Kidston's letter is to be held as expressing Mrs Breen's election of her legal rights as something different from the one-half of the moveable estate, then it was not authorised; it was not Mrs Breen's election. If, further, the letter is regarded as Mrs Breen's election, it was an election made under essential error an error induced among other things by the conduct of Mr Inglis junior, and therefore not binding.

“It need scarcely be said that if Mrs Breen on 28th January elected to take her legal rights rather than the settlement provisions, before the amount of the legitim fund was at least approximately known, or in the knowledge that the amount of the legitim fund falling to her, if she so elected, might only be one-half of what she expected or was advised would be hers—if she elected to take her legal rights in the knowledge that her view of what those amounted to in money value was to be contested by her brother—her election made in such circumstances would have been binding. She then, in the knowledge of all the facts affecting or which might affect her choice, took the risk and responsibility of making it. But the case I am dealing with is the very opposite of this. Indeed, it appears to me that Mrs Breen, better informed now than she was on 28th January, is not yet in a position to make her election. Whether she is to get £35,000 or £70,000 if she elects to take her legal rights, is a consideration which, I should suppose, would very materially affect her choice. But which of these sums represents the value of her legal rights is not yet ascertained. And although it is comparatively a small matter, it is yet in itself sufficiently important for her to know whether the moveable succession of her father, and consequently the legitim fund, is to be increased or not by the addition of a share of the profits made on contracts current at his death.

“On the whole matter I shall find that Mrs Breen is entitled to insist in her alternative claim, not having validly elected between her legal and conventional rights.”

John Inglis junior reclaimed, and argued—Mrs Breen at the time she made her election was in full possession of all necessary information. There was nothing of the nature of a contract in the transaction; it was a choice solemnly made after the fullest consideration, from which she could not resile. Mrs Breen had taken separate advice from the first, and there was no duty or obligation upon the trustees or upon Mr Inglis in any way to influence her choice. If any mistake had been made it was one of law, and not of fact; and against such a mistake, if it existed, Mrs Breen could not be reponed. Further, there could be no valid objection to the letter of 28th January 1885, upon the ground that it was not authorised by the claimant's husband as her curator, because under the marriage-contract Mr Breen had renounced his jus mariti and right of administration, and by so doing he gave up all right over his wife's estate. Under all the circumstances Mrs Breen's election must be held as final, and she was barred from now claiming the provisions in the settlement.

Authorities— Johnston v. Paterson, November 29, 1825, 4 Sh. 234; Baird's Trustees v. Baird, July 10, 1877, 4 R. 1005; Monteith v. Monteith's Trustees, June 28, 1882, 9 R. 982; Cooper v. Phibbs, 2 Eng. and Ir. Apps. 149; Jarman on Wills, vol. ii, p. 58; Williams on Executors, p. 1280; Bryce's Trustees v. Bryce, March 2, 1878, 5 Rf. 722; Biggart v. City of Glasgow Bank, January 15, 1879, 6 R. 470; Beauchamp v. Winn, L.R. 6 H.L. 223.

Replied for Mrs Breen—The letter of 28th January 1885 was open to several objections—

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it was written under essential error, because at that time it was understood by all parties except Mr John Inglis, who concealed his information, that in the event of Mr Breen claiming her legal rights she was to get one-half of the fund in medio, and this error was so essential as to render the letter void. (2) The letter was open to the objection that it was not concurred in by Mrs Breen's husband as her curator— Millar v. Galbraith's Trustees, March 16, 1886, 13 R. 764; Primrose, March 9, 1850, 12 D. 916, and 22 Jur. 240; M'Fadyen v. M'Fadyen's Trustees, December 2, 1882, 10 It. 285; Donaldson v. Tainsh's Trustees, June 11, 1886, 13 R. 967; Blacks v. Girdwood, November 25, 1885, 13 R. 243; Fraser on Husband and Wife, i. 815. (3) The letter was timeously withdrawn— Panmure v. Crokat February 29, 1856, 18 D. 703; Mercer v. Anstruther's Trustees, March 6, 1871, 9 Macph. 618. There was here an error in fact as well as in law, and of such a kind as to make the election void; the parties were here in the position of having made a contract which had not been fulfilled.

Authorities (in addition to those cited by the Lord Ordinary)— Kintore v. Kintore, June 28, 1884, 11 R. 1013; Benjamin on Sales, 375; Bell's Prin. sec. 11; Hope v. Dixon, December 17, 1833, 12 S. 222.

At advising—