Scottish Court of Session Decisions

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Cite as: [1887] SLR 25_6, [1887] ScotLR 25_6

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Wednesday, October 19. 1887.

25 SLR 6

M'Ewen (Dobie's Trustees)

v.

Pritchard and Others.

Subject_1Succession
Subject_2Conditio si sine liberis
Subject_3Will
Subject_4Subsequent Birth of Child — Revocation.
Facts:

A lady in her antenuptial marriage settlement directed her trustees in the event of there being no child of the marriage to pay the trust-funds to such person or persons as she should appoint by her will. Ten days afterwards she executed a will, and on the narrative that it was made “pursuant to the power reserved by or given to her in and by the said antenuptial settlement, and of all other powers enabling her in that behalf,” she bequeathed her estate to two sisters and to her husband. Three years after a child was born of the marriage, whom the testatrix survived one month. Held that the conditio si sine liberis applied, and that the will was revoked by the subsequent birth of the child.

Per the Lord Justice-Clerk and Lord Craighill—that the antenuptial settlement and the will were only intended to take effect in the event of there being no child of the marriage.

Headnote:

By antenuptial settlement dated 11th August 1882, between Herbert Hallett of Chapel Street, Park Lane, London, of the first part, Jane Dobie of 33 Chepstow Place, Bayswater, of the second part, and Madalene Dobie and Samuel M'Millan of the third part, it was agreed that Madalene Dobie and Samuel M'Millan should hold certain stocks and funds belonging to the said Jane Dobie in trust as therein mentioned. The settlement contained this declaration—“And it is hereby declared that in case there shall be no child of the said marriage who, being a son, shall attain the age of twenty-one years, or being a daughter shall attain that age or marry, the trustees shall stand possessed of the said trust-funds, or of so much thereof respectively as shall not have been applied under any of the trusts and power herein contained. Upon the trusts following—that is to say, upon trust
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to pay the same unto such person or persons as the said Jane Dobie, whether covert or sole, shall by her last will and testament, or any codicil thereto, direct or appoint; and in default of any such direction or appointment, then upon trust to divide and pay the same between and amongst the next-of-kin of the said Jane Dobie in accordance with the Statute of Limitations in force in England.”

On 21st August, ten days thereafter, Mrs Dobie or Hallett executed a last will and testament, in which, on the narrative that it was “made and executed pursuant to the power reserved by or given to me in and by a certain indenture of settlement bearing date the 11th August 1882, executed prior to and in consideration of my then intended marriage with the said Herbert Hallett, and of all other powers enabling me in that behalf,” she bequeathed to her sister Mrs M'Millan, wife of Samuel M'Millan, the sum of £250; and as to the rest and residue of her estate whatsoever and wheresoever, she gave the same equally between her sister Madalene Dobie and her husband Herbert Hallett, share and share alike; and thereby she appointed Samuel M'Millan and Madalene Dobie as her executor and executrix.

On 10th March 1885 Alexander Dobie, Mrs Hallett's brother, died without issue, leaving a share of his heritable estate, which was situate in Scotland, to his sister Mrs Hallett.

On 19th August 1885 a daughter, Emily Marian Luxmore, was born of the marriage. Mrs Hallett only survived this daughter a month, and died on 23d September 1885. At the time of her death and also of the execution of the will she was domiciled in England. Mr Hallett died on 24th September 1886, survived by his daughter, to whom as guardian he by his will appointed Alfred John Pritchard, solicitor, London.

A question arose as to whether Mrs Hallett's will was, as regarded her interest in the heritable property forming her brother's trust-estate, evacuated by the subsequent birth of her daughter. The first party in the case was William Campbell M'Ewen, W.S., Edinburgh, the trustee under a trust-disposition executed by Alexander Dobie. The second party was Alfred Pritchard, the child's guardian, who maintained that the will was evacuated. The third and fourth parties were the beneficiaries or representatives of beneficiaries under Mrs Hallett's will, and they maintained that the will was not evacuated.

The question submitted for the opinion of the Court was—“Whether the said Mrs Jane Dobie or Hallett's last will and testament, in so far as it disposed of her interest in the trust-estate of the said Alexander Dobie, was revoked by the birth and survivance of her said daughter, the ward of the second party?”

Argued for the third and fourth parties—The conditio si sine liberis testator decesserit did not apply here. Mrs Hallett had in view the possibility of there being children of the marriage when she signed the marriage settlement, and she survived the birth of her child without altering the terms of her will. Her will did not deal with her whole estate — Ersk. Inst., iii., 8, 46; Yule, December 20, 1758, M. 6400; Watt, July 30, 1760, M. 6401; Bell's Princ. sec 1776. The case of Colquhoun v. Campbell, June 5, 1829, 7 S. 709, did not apply, as it was a settlement dealing with the whole estate.

Counsel for the second party was not called upon.

At advising—

Judgment:

Lord Justice-Clerk—The question in this special case might in other circumstances have presented some difficulty; but as I read the marriage settlement, I see no difficulty whatever. Apart from the precise words, it substantially is to this effect—Mrs Hallett reserves power, should there be no children born of the marriage, to test on any money coming to the settlement, and she requires her trustees to pay it to anyone she should appoint by her last will and testament. Ten days subsequent to this deed she executed her last will, bequeathing her interest in her brother's heritable estate to her two sisters and to her husband. Three years afterwards a daughter was born to her, whom she only survived one month. In these circumstances the question has arisen whether Mrs Hallett's will has been evacuated by the subsequent birth of the daughter. I am of opinion that the will, like the antenuptial settlement, proceeded entirely on the contingency of there being no child born of the marriage. The provisions in the marriage settlement are very express as regards this contingency. No doubt there occur in the will the words “all other powers enabling her in that behalf,” but I think these must be read subject to the contingency of her having no children; then and then only was she to have the power of testing. On that simple construction of the settlement, then, I am of opinion, that the testament has been evacuated. At the same time, I do not doubt that according to authority in the law of Scotland, a will made prior to the birth of a child may be evacuated by its subsequent birth, if such an event was not in the contemplation of the testator.

Lord Young—I think the question must be answered as your Lordships propose. I am of opinion that on the doctrine of si testator sine liberis decesserit the will made by Mrs Hallett in 1882 was absolutely revoked by the birth of the child in 1885.

Lord Craighill—I also think that the will in 1882 was revoked by the subsequent birth of the child. That is sufficient for the decision of the question presented to us, but if it had been necessary to give a decision (which I think it is not) on the point, I should have adopted the view taken by the Lord Justice-Clerk on the construction of the testament.

Lord Rutherfurd Clark—I also am of opinion that the will of Mrs Hallett was revoked by the birth of her child. Whether it could be set up again by mere survivance, I greatly doubt. I am inclined to think that there was an absolute annulling of the deed in consequence of the birth of the child, and that it could only be set up by a formal deed of equal value. By mere survivance, we cannot imply an intention on Mrs Hallett's part to give effect to it. But I am not moved by this consideration, because, assuming we have the right to entertain it in order to further her intention, I think there is nothing in the case by

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which she showed her intention that the will should receive effect in its terms.

The Court answered the question in the affirmative.

Counsel:

Counsel for First and Second Parties— W. Campbell. Agents— J. & A. F. Adam, W. S.

Counsel for Third and Fourth Parties— Shaw— Guthrie. Agents— Cair M'Intosh, & Martin, W.S.
1887