Scottish Court of Session Decisions

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Cite as: [1890] ScotLR 28_205, [1890] SLR 28_205

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Tuesday, December 16. 1890.

[ Lord Kyllachy, Ordinary.

28 SLR 205

Hay

v.

Stewart and Others.

Subject_1Succession
Subject_2Legitim
Subject_3Deathbed
Subject_4Cash Payment — Act 34 and 35 Vict. c. 81.
Facts:

The Act 34 and 35 Vict. c. 81, on the preamble that “it is expedient to abolish all challenges and reductions in Scotland ex capite lecti,” enacts “That no deed, instrument, or writing made by any person who shall die after the passing of this Act shall be liable to challenge or reduction ex capite lecti.”

A father granted a deed to take effect during his lifetime, by which he conveyed to certain trustees, for behoof of three of his children, a sum of £3200 in cash, besides some heritable bonds. A cheque for the sum of £3200 was handed to the trustees at the same time as the deed was delivered.

A child not mentioned in the deed brought an action against the trustees for payment of legitim out of the £3200, on the plea that the sum had been paid to them by her father when he was on deathbed. Held that the payment of the money was part of the same transaction as the granting of the deed, and that the deed not being open to challenge ex capite lecti, the pursuer's plea failed.

Question—Whether the Act 34 and 35 Vict. c. 81, would apply to cash payments made on deathbed?

Headnote:

Upon 28th April 1884 James Coutts executed a trust-deed of provision to take effect during his lifetime, whereby he conveyed and made over to John Stewart, James Macnaughton, and Andrew Wallace, as trustees for behoof of his three youngest children, “the sum of £6000 (three thousand two hundred pounds sterling of which I have handed to them in cash, and the remainder being contained in five several bonds and dispositions in security which I have assigned to them by separate assignations of the said bonds and dispositions in security executed by me of even date herewith).

The deed was delivered immediately after execution, and the funds thereby settled were paid or conveyed over at the same time, £3200 by cheque on the Royal Bank, payable to Andrew Wallace or bearer, and £2800 in heritable bonds.

James Coutts died on 2nd June 1884 leaving a trust-disposition and settlement dated 29th April 1884 in favour of the same trustees, by which he disposed of the universitas of his estate not otherwise disposed of.

The present action was brought by Jane Amelia Coutts or Hay, eldest of the ten children of the deceased James Coutts who survived him, against John Stewart, James Macnaughton, and Andrew Wallace, as trustees under the two deeds above mentioned, to have it declared (1) that the pursuer was entitled to one-tenth of one-half of the moveable estate left by the deceased James Coutts, her father, in name of legitim; (2) that the sum of £3200 was paid and transferred to the defenders, as trustees under the trust-deed of provision by James Coutts, without any just or onerous cause while he was on deathbed within sixty days of his death, and while labouring under the disease of which he died, to the prejudice of the pursuer; and (3) that she was entitled to one-tenth of one-half of said sum as part of her legitim payable therefrom. There were also conclusions for count, reckoning, and payment.

The defenders pleaded, inter alia—“(5) Said deed is not subject to challenge on the head of deathbed, in respect that the exception of deathbed was abolished by the Statute 34 and 35 Vict. c. 81.”

By the said Act it was provided as follows—“Whereas it is expedient to abolish
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all challenges and reductions in Scotland ex capite lecti: Be it therefore enacted, that no deed, instrument, or writing made by any person who shall die after the passing of this Act shall be liable to challenge or reduction ex capite lecti.”

On 6th November 1889 the Lord Ordinary ( Kyllachy) found that the pursuer had made no relevant averment in support of her second plea-in-law, and therefore repelled said plea. He also allowed the defenders a proof of their averments on another branch of the case to which reference is unnecessary.

The pursuer reclaimed, and argued—The Act founded on by the defenders only abolished the law of deathbed as to deeds, instruments, and writings, and otherwise the old law which prevented a father defeating the rights of his children upon deathbed remained in force—Fraser on Husband and Wife, vol. ii. p. 1006; Stair, iii. 4, 24; Ersk. Inst. iii. 9, 16; Milroy v. Milroy, May 31, 1803, Hume's Dec. 285; Brown v. Thomson, March 15, 1634, M. 3200; Greig v. Greig, October 19, 1872, 11 Macph. 20. The Lord Ordinary's interlocutor should therefore be recalled, and the pursuer should be allowed a proof of her averments in support of her second plea-in-law.

Argued for the defenders and respondents—It was only deeds of a testamentary nature and revocable deeds which had been prior to 1871 open to challenge as having been granted on deathbed in prejudice of the rights of children. The deed in question being an inter vivos deed, which irrevocably divested the granter of the sums thereby conveyed, would not therefore, even under the old law, have been open to challenge. Further, the payment of £3200 followed on the deed, and was part of the same transaction, and as the deed could not be challenged ex capite lecti owing to the provisions of the Act of 1871, neither could the transference of the money. It was also a reasonable view that the Act of 1871, when it abolished reductions of deeds ex capite lecti, removed the grounds of the old decisions as to cash deliveries on deathbed, and that objections to cash deliveries ex capite lecti could no longer be sustained.

At advising—

Judgment:

Lord President—The trust-deed of provision was executed by Mr Coutts on 28th April 1884, and he died on the 2nd of June following. It is impossible to view the deed as a disposition mortis causa, because it is not a deed under which any right could afterwards revive to the granter. It is an out-and-out settlement for behoof of the three children named in it, “to come into operation during my life time,” and it conveys to certain trustees a sum of £6000 in all, to be managed and disposed of for the benefit of the said children. The £6000 consists partly of heritable bonds, and so far the pursuer does not seek to challenge the deed, because her title arises from her alleged right to legitim, and heritable bonds are not subject to claims of legitim. It is therefore the sum of £3200, which the truster says in the deed he has handed to the trustees in cash, that forms the subject of contention between the parties, and the plea repelled by the Lord Ordinary is the second plea for the pursuer, which is in these terms—“The said James Coutts having paid the sum of £3200 to the defenders while he was on deathbed, and within sixty days of his death, and while labouring under the disease of which he died, the pursuer is entitled to decree of declarator, count, and reckoning, and payment as craved.” The Lord Ordinary has held that the pursuer has made no relevant averment in support of that plea, and I agree with him.

I think the question comes to be, whether the deed is open to challenge as a whole. If the £3200 had been handed over in banknotes without anything more being done, it would have been a very different case, and would have looked like a fraud on the legitim. But that is not what was done at all. The sum in question was handed over by means of a cheque in pursuance of a general settlement in favour of the three children referred to in the deed, and the deed stands or falls as a whole; and I cannot find any ground in law for holding, after the passing of the Act 34 and 35 Vict. cap. 81, that a deed of this kind is reducible on the head of deathbed. It appears to me that the effect of the statute is to protect every deed or writing from challenge on that ground.

I am therefore of opinion that the interlocutor of the Lord Ordinary should be adhered to.

Lord Adam—I am of the same opinion. The object of the pursuer in seeking to separate the transaction into two parts is obvious, because if we could treat the payment of the £3200 as a separate transaction by itself there might or might not be a good deal to be said for the plea that that transaction did not fall within the scope of the statute by which the exception of deathbed is said to have been abolished. As has been said, the enacting clause of that statute mentions only “deeds, instruments, and writings,” and it might be argued that the actual handing over of money could not be brought under it, and that the question was left open whether the Act was meant to apply to such a case.

I agree with your Lordship that it is impossible to separate the transaction into two parts, and that we must look upon the granting of the deed and the payment of the money as one transaction. If that is the true view of the matter, then it is beyond all question that the transaction falls within the terms of the statute.

Lord M'Laren—The legal question which was argued by Mr Miller is no doubt an interesting point if the circumstances of the case admitted of such a question being raised, because, whether by design or by inadvertence, it is certain that the statute of 34 and 35 Vict. does not in its enacting words contemplate the case of a gift made without writing, and reducible on the head

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of deathbed. Should such a case arise for consideration, we shall have to consider whether the enacting words can receive aid from the preamble, or whether they must be taken as they stand. No such case is raised here, because under the deed of settlement produced and printed the trustees of Mr Coutts have received by deed of gift, assignation, and disposition the sum of £6000 sterling, whereof it is stated the testator handed to them £3200 in cash. That deed of gift is a good title to the money, and may be pleaded in answer to a demand upon the trustees to account. Under the old law the effect of the deed might be taken away by reduction ex capite lecti. But here the statute comes in to fortify the title by taking away the right of challenge ex capite lecti, and therefore the case of the pursuer under the second plea-in-law entirely fails.

Lord Kinnear concurred.

The Court adhered.

Counsel:

Counsel for the Pursuer— Galbraith Miller. Agents— J. B. Douglas & Mitchell, W.S.

Counsel for the Defenders— H. Johnston. Agent— Andrew Wallace, Solicitor.
1890