Scottish Court of Session Decisions

The late John Gillon of Wardie House, merchant in Leith, was married to the late Jane Douglas or Gillon in 1819. He died on 5th April 1879, survived by his wife, who died on 21st October 1886. There were three children of the marriage, viz., John Gillon junior, who died on 17th September 1863, survived by a widow and four children; Margaret Gillon or Wotherspoon, wife of William White Wotherspoon, late of Her Majesty's Indian Army; and Euphemia Wilson Gillon or Dawson, widow of the late John Dawson, Greenpark, Linlithgow.

By antenuptial contract of marriage dated 28th June 1819 John Gillon senior bound and obliged himself to make payment to his wife if she should survive him of an annuity of £100, and he further bound and obliged himself “to provide and secure all and sundry lands, heritages, and sums of money, goods, gear, and other estate, real and personal, that he shall happen to conquest or acquire or succeed to during the standing of the present marriage, to and in favour of himself in liferent, and the children to be procreated of the marriage betwixt him and the said Jane Douglas, and the heirs of their bodies in fee, whom failing to his own nearest heirs and assignees whomsoever, subject always to the payment of the annuity before provided to the said Jane Douglas: But declaring always, as it is hereby expressly provided and declared, that if there shall be more children of the present marriage than one, the said John Gillon shall have it in his power, as he hereby expressly reserves to himself the power of dividing and proportioning the said conquest among the said children as he shall see proper, by a writing under his hand at any time of his life, or even on deathbed, and failing such division the same shall be proportioned equally, share and share alike, among the said children, the issue of the child or children deceasing succeeding to the share which the parent or parents thereof would be entitled to if in life; and for ascertaining the extent of said conquest it is hereby agreed that the same shall comprehend and extend to all and whatever estate, heritable or moveable, belonging or owing to the said John Gillon at the dissolution of the marriage, whether by purchase, donation, or succession, after deduction of the debts due by him,”—which provisions were declared to be in full satisfaction of all legal claims competent to his widow or to the children of the marriage.

Mr Gillon senior at the time of his death left estate amounting to about £20,000, all acquired by conquest after 1840, and consisting partly of heritage and partly of moveables.

In the contract of marriage entered into between his daughter Euphemia Wilson Gillon and John Dawson, dated 15th June 1841, John Gillon senior bound and obliged himself, on the decease of the longest liver of himself and his wife, to make payment to the said Euphemia Wilson Gillon and the heirs of her body of the sum of £2000, to be invested in favour of his daughter in liferent for her liferent use only, whom failing to her husband for his liferent use only, whom failing to the heirs of her body in such portions and under such conditions as she might appoint,

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whom failing “to the heirs of the said John Gillon in fee; which provisions by the said John Gillon in favour of the said Euphemia Wilson Gillon, she and the said John Dawson hereby accept of in full satisfaction of all bairn's part of gear, legitim, portion-natural, executry, and every other claim competent to them through the decease of the said John Gillon and Jane Douglas or Gillon, his spouse.”

By trust-disposition and settlement executed by John Gillon senior, dated 2nd February 1866, and two codicils dated respectively 21st January and 5th December 1874, he disponed in favour of the trustees therein mentioned, of whom the parties of the first part were now the sole trustees, his whole means and estate, heritable and moveable, but in trust for the purposes therein specified, viz. — Fifth, On the death of his widow the testator appointed the residue of his whole estate to be divided into three parts; and primo, to hold and apply one-third thereof … for behoof of Mrs Gillon junior in liferent, and on her death to hold the same for behoof of her children, … with power to Mrs Gillon to apportion the same among said children, with consent of the trustees as therein mentioned, the daughters' shares to be life-rented by them, the fee going to the heirs of their bodies, whom failing their respective heirs and assignees; secundo, another third was appointed to be held by his trustees for behoof of Mrs Wotherspoon in liferent, and on her death for behoof of her daughter, and any other children Mrs Wotherspoon might have, in liferent, and the issue of their bodies, whom failing their nearest heirs and assignees in fee; tertio, the testator appointed the remaining third of residue to be held for behoof of Mrs Dawson (after implementing the obligations come under by him in her marriage-contract) in liferent, and on her decease for her children, … equally among them, the sons to be paid their shares on the death of their mother, and the daughters' shares to be held in liferent, the fee going to the heirs of their bodies, whom failing their heirs or assignees. The trustees were also authorised to restrict Miss Wotherspoon's liferent to such an annuity as they might consider necessary, and the provisions to the testator's wife and children were declared to be in full of all their legal claims. By his first codicil the testator cancelled certain of the legacies, and left a legacy of £500 to Douglas John Gillon, the only son of John Gillon junior, together also with some silver plate and oil paintings; and by his second codicil the testator appointed the share to be liferented by Miss Wotherspoon, in the event of her dying without issue, to be divided among certain of the other beneficiaries.

A special case was prepared and presented to the Court by (1) the trustees of John Gillon senior; (2) and (3) the widow and children of John Gillon junior; (4) William White Wotherspoon, on behalf of his wife Mrs Margaret Gillon or Wotherspoon, to whom he had been appointed curator bonis; (5) their only child Miss Jane Douglas Wotherspoon; (6) Mrs Euphemia Wilson Gillon or Dawson; (7) her children; and (8) the testamentary trustees of Mrs Gillon senior, for the determination of the following questions of law—“(1) Was the power of the said John Gillon senior, of dealing with his means and estate, limited to the power of division and apportionment reserved to him in his marriage-contract? (2) In the event of the preceding question being answered in the negative, do the means and estate of the said John Gillon senior fall to be administered in terms of his said trust-disposition and settlement? (3) In the event of the first question being answered in the affirmative, do the provisions of the said trust-disposition and settlement constitute a valid and effectual exercise of the said reserved power of apportionment to any, and if so to what effect? (4) Does the sum of £2000 provided to Mrs Dawson in her marriage-contract constitute a pro tanto apportionment of the conquest in favour of Mrs Dawson; or does the said sum fall to be deducted before ascertaining the divisible amount of the conquest fund? (5) Does the legacy of £500 to the said John Douglas Gillon fall to receive any, and if so what effect?”

The parties of the second and third parts maintained that as the testamentary deed of John Gillon senior was not in fraudem of the provisions of his marriage-contract, it should receive effect, and that on a sound construction thereof Mrs Dawson was not entitled to £2000 over and above the one-third of the residue. Alternatively they maintained that the testamentary deed was, in so far as it disposed of the residue of the estate of John Gillon senior, a valid apportionment in terms of the marriage-contract, and that in consequence thereof the residue of the estate of John Gillon senior fell to be divided into three parts, of which Mrs Gillon junior and her children were entitled to one, and that Mrs Dawson was not entitled to £2000 in addition to her one-third share.

The party of the fourth part, with consent of the party of the fifth part, maintained that Mrs Wotherspoon was entitled in fee to one-third of the whole means and estate left by John Gillon senior at his death, or at all events, that she was entitled in fee to her share of whatever estate the said John Gillon senior had left unapportioned. Alternatively, the party of the fifth part maintained that she was entitled to the share of the estate destined to her in liferent upon the death of her mother, absolutely and without any restrictions.

The party of the sixth part, with consent of the parties of the seventh part, maintained that she was entitled (1) to the sum of £2000 with accruing interest thereon from the date of the death of her mother Mrs Gillon, in terms of her marriage-contract; and (2) to one-third share in fee of the whole means and estate left by the said John Gillon senior; and, in any view, to such portion thereof as might be held to be unapportioned. Alternatively, Jane Douglas Dawson or Shepherd and Frances Mackell Dawson, two of the parties of the

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seventh part, maintained that they were entitled to the share of the estate destined to them in liferent upon the death of their mother, absolutely and without any restrictions.

Argued for the second and third parties — The first question should be answered in the negative, and the second in the affirmative. The truster settled the universitas of his estate by his marriage-con—tract. That left him free—apart from the power reserved in the marriage-contract—to apportion his estate as he had done. The only restriction upon his power to deal with his estate was that he should make a distinct settlement and confine the benefits to members of his own family. Considering how long he had been married, and that he had grandchildren grown up, it was reasonable he should include his son's widow among the beneficiaries, and regulate the quality of the right of succession of his descendants, e.g., by limiting children's right to a liferent, giving the fee to grandchildren. If the truster had not this right apart from the clause in the marriage-contract reserving a power of apportionment, he had it in virtue of that clause, and powers of reservation were to be more liberally construed, especially when they related to a universitas, than powers by constitution. The trust-settlement as a valid exercise of the reserved power fell to be upheld in toto. In any case, it was a valid exercise of the power in so far as it conferred a fee upon the son of John Gillon junior. His father having predeceased the truster, he was an object of the power. He accordingly was entitled to take one-third of the residue in fee. The remaining two-thirds as unapportioned would fall to be divided equally among John Gillon senior's descendants per stirpes. At any rate, John Douglas Gillon, as an object of the power, was entitled to the legacy of £500. Under the third clause of purpose 5 of the trust-settlement Mrs Dawson's marriage-contract provisions were to be deducted from her share of the residue, consequently the first part of question 4 should be answered in the affirmative— Cuming v. Kennedy, January 20, 1699, Mor. 12,959, and (fuller report) Mor. 6443; Campbell v. Campbell, 1738, Mor. 6849 (Kilkerran's Report); Thomson, 1762, Mor. 13,018; Dick v. Lindsay, 1776, Mor. Provision to Heirs and Children, App, No. 2; Ormiston, 1809, Hume 531; Baikie's Trustees v. Oxley & Cowan, February 14, 1862, 24 D. 589; Champion, &c. v. Duncan, &c., November 9, 1867, 6 Macph. 17 (Lord Curriehill); Churchill v. Churchill, December 1867, L.R., 5 Eq. 44; Moir's Trustees, June 17, 1871, 9 Macph. 848; M'Donald's Trustees v. M'Donald, &c., March 10, 1874, 1 R. 794, June 17, 1875, 2 R. (H. of L.) 125; Lowden's Trustees v. Lowden, &c., June 1, 1881, 8 R. 741; Mackie v. Mackie's Trustees, July 4, 1885, 12 R. 1230; Act 37 and 38 Vict. c. 37 as to appointments under powers; Fraser's Husband and Wife, ii. p. 1369.

Argued for fourth, fifth, sixth, and seventh parties—The succession was ruled entirely by the marriage-contract. The trust-settlement was ultra vires of the truster. He had no power to deal with his estate apart from the clause in the marriage-contract. That clause gave him only a right of apportionment among his children. The trust-deed was not an exercise of that power. It attempted to limit the children's rights to a liferent, whereas on their father's death they had a right of fee; it apportioned the rights of grandchildren, and it conferred rights upon the son's widow, who was a stranger to the power. The other side had relied upon old cases in Morison but had ignored the newer cases. The case of Arthur, infra, alone was conclusive of the question. Even if the trust-deed were regarded as a partially valid exercise of the power, it could not be given effect to, because in other respects it was inept—Lord Curriehill in Baikie's Trustees, infra, p. 596. Mrs Dawson should receive the £200 secured to her under her marriage-contract before the estate was divided. It was a debt against the estate— Smith Cunninghame and Mercer v. Anstruther's Trustees, April 25, 1872, 10 Macph. (H. of L.) 39. The legacy to the grandson was clearly invalid— Spiers, &c. v. Dunlop, &c., July 28, 1778, Mor. 13,026; Lord Ivory's Note on Ersk. Inst. iii. 8, 39; Munro, February 13, 1810, F.C.; Arthur & Seymour v. Lamb, &c., June 30, 1870, 8 Macph. 928; Boustead v. Gardner, &c., November 4, 1879, 7 R. 139.

At advising—