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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Brown (Millar's Trustee) and Others [1893] ScotLR 30_865 (20 July 1893)
URL: http://www.bailii.org/scot/cases/ScotCS/1893/30SLR0865.html
Cite as: [1893] ScotLR 30_865, [1893] SLR 30_865
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SCOTTISH_SLR_Court_of_Session
Page: 865↓
Court of Session Inner House First Division.
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Facts:
A testator who by antenuptial contract of marriage had settled £9000 upon his wife and children, three and a-half years after the marriage, and before any child had been born, executed a general settlement which referred to the marriage-contract, and really dealt with only about £700. Eleven months later a child was born, whose birth he survived for three years, when he died leaving the general settlement unaltered.
Held (1)—(following the opinion of Lord Watson in Hughes v. Edwards, L.R., App. Cas. p. 591)—that whether revocation of a parent's testament by the subsequent birth of a child is to be implied or not, is entirely a question of circumstances; and (2) that looking to the circumstances of this case the settlement had not been so revoked.
The late James Millar, Tarbet, Loch Lomond, executed an antenuptial contract of marriage upon 11th September 1883 by which he conveyed to trustees the sum of £9000, and which contained the following provisions:—“Declaring, as it is hereby declared, that the trustees shall hold and apply the said principal sum of £9000 for behoof of the said James Millar in liferent, during all the days of his life, so long as there shall be no issue of the
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said intended marriage; but in the event of such issue being born, the income of the said sum of £9000 shall be paid and applied by the trustees in such manner as they may consider most suitable for the maintenance and education of the issue of the said intended marriage, with power to the trustees to pay such income to the said James Millar, or to his intended spouse, for behoof of such issue; … and in the event of the death of the said James Millar, the said sum of £9000 shall be held and applied by the trustees thereafter for behoof of his said intended spouse in the event of her surviving him, in liferent, during all the days of her life, so long as she shall remain his widow, and upon her decease or second marriage, for behoof of the issue of the said intended marriage, and in manner hereafter provided in fee.” These provisions in favour of children were declared to be in full satisfaction of their legal claims. Upon 13th June 1887 James Millar executed a general disposition and settlement of all his estate, heritable and moveable, in favour of his wife, declaring that he did so “in exercise of all powers of disposal or otherwise competent to me under or by virtue of the antenuptial contract of marriage.”
Upon 6th May 1888 a daughter, the only child of the marriage, was born, and upon 19th June 1891 James Millar died, survived by his wife and child, the former of whom died on 12th January 1892 leaving a settlement.
A multiplepoinding was raised by Mr Marcus J. Brown, S.S.C., her trustee and executor, as nominal raiser, the claimants being Mr Brown, as her executor, and also as tutor-nominate of her daughter; James Millar's brother, in right of certain creditors, as real raiser, and certain other creditors.
The first question was as to the effect of the birth of the child upon the general settlement, the child's tutor pleading that “the said general disposition and settlement of 13th June 1887 having been executed while the testator had no issue, and without making provision for the contingency of his leaving issue, was revoked, to the extent of the estate not dealt with by the marriage-contract, by the subsequent birth of his child Mary Millar, and the said James Millar having left no other disposition of his means over and above the £9000 conveyed by his marriage-contract, the same vested in the said Mary Millar as his heir in mobilibus.”
Upon 16th February 1893 the Lord Ordinary (
Low ) pronounced the following interlocutor:—“Finds that the trust-disposition and settlement of the deceased James Millar, dated 13th June 1887, was not revoked at the date of his death, and must receive effect as a valid settlement of his affairs: With this finding appoints the cause to be enrolled for further procedure: Reserves all questions of expenses, and grants leave to reclaim.“ Opinion.—It was maintained for the tutor-nominate of Mary Millar that her father's settlement was revoked by her subsequent birth, and can receive no effect.
The authority chiefly relied upon by the tutor was the case of Dobie's Trustees, 15 R. 2, in which Lord Rutherfurd Clark expressed the opinion that mere survivance of the parent, however long, would not have the effect of setting up a general settlement made prior to the birth of the child, and at a time when the contingency of a child being born was not in contemplation. None of the other Judges in that case differed from the view taken by Lord Rutherfurd Clark, and if there was nothing here to be said in favour of holding the settlement to be operative except that the father survived the birth of his child for three years, I should hold it to be settled that that was not enough.
Survivance, however, for a period apparently long enough to allow the parent an ample opportunity of reconsidering his settlement and altering it, if he thinks fit, to suit the altered circumstances, has always been recognised as one of the elements to be taken into account in cases of this description.
In the case of Hughes v. Edwards, L.R., App. Cas. 1892, p. 591, Lord Watson says—‘According to the law of Scotland the question whether the testament of a parent is revoked by the subsequent birth of a child is one wholly dependent upon the circumstances of the case.’
It is therefore necessary to consider the whole circumstances of the case, and those which appear to me to be material are as follows:—“(1) By the testator's antenuptial contract of marriage the sum of £9000 was secured to his children; (2) the value of the estate which the testator had at his disposal at his death was small, amounting apparently, after payment of debts, only to some £700; and (3) the testator survived the birth of his child for such a length of time that he had full opportunity of making a new settlement if that which he had previously made did not continue to express his intention as to the disposal of his estate.
In such circumstances I am of opinion that the settlement cannot be held to be revoked, and of no effect. Although the settlement is in form a universal settlement, it in fact dealt with only a small part of the testator's estate. The great bulk of the estate fell under the marriage-contract, by which an ample provision, having regard to the amount of the father's fortune, was secured to the child.
The present case appears to me to be more nearly allied to that of Yule v. Yule, M. 6400, than to that of Dobie's Trustees, or of Colquhoun v. Campbell, 7 S. 709, which was also relied upon by the tutor-nominate.”
The tutor reclaimed, and argued—That the case was ruled by the cases of Dobie's Trustees v. Pritchard, October 19, 1887, 15 R. 2 (espec. Lord Rutherfurd Clark's opinion), and Munro's Executors v. Munro, November 18, 1890, 18 R. 122. It was not clear that the truster meant the contract of marriage and his settlement to be read
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together. If he had had the marriage-contract in contemplation he must have known that there was no provision for the maintenance of children during the widow's lifetime. The presumption that the settlement was revoked by the child's birth should be applied. Argued for Mrs Millar's executor—Whether or not there had been revocation was a question of circumstances— Adamson's Trustees, July 14, 1891, 18 R. 1133, and the opinion of Lord Watson in the recent case of Hughes v. Edwards, 1892, L.R., App. Cas. 583, quoted by the Lord Ordinary. There was sufficient here to elide the presumption of revocation. Not merely did the truster survive the birth for three years, but in making his settlement he knew that possible children were amply provided for under the marriage-contract to which he referred.
At advising—
The facts are these—An antenuptial contract of marriage was entered into between the spouses upon 11th September 1883, and by its provisions £9000 were settled by the husband upon his wife and children in somewhat unusual terms. Upon the birth of a child the income of that sum was, even during the father's life, to be expended by the trustees for the child, and upon the father's death the income was to be expended for behoof of the widow, no reference being made to any obligation as to the children whom it would be incumbent upon her to maintain. Upon her death or second marriage the income is freed for the benefit of the children.
Upon 13th June 1887, three and a-half years after the marriage, the settlement in question was executed. It appears to be ex facie a general settlement, but it bears reference to the marriage-contract, and it really only deals with £700, the residue of the truster's means and estate.
There was thus only a short interval between the execution of the marriage-contract and the execution of the settlement, and the truster might still fairly expect to have children. A child was in fact born upon 6th May 1888, eleven months after the settlement. The father survived until 19th June 1891.
Looking to these facts, I agree with the Lord Ordinary. It is material to observe that the father when he made this settlement must have been well aware of the marriage-contract, and must have known that he had already by that contract bestowed by far the greater part of his means and estate upon his wife and children, and that he was de facto only dealing with a small part of his property.
It is difficult to conclude otherwise than that when the child was born, he knowing it was amply provided for, did not disturb his settlement, because he thought the marriage-contract and the settlement would be read together, and when so read constituted a fair settlement of his affairs. I am for adhering to the judgment of the Lord Ordinary.
The conditio si sine liberis as applied to the case of legatees has been very liberally applied. But in this special branch of the subject we have the authority of the House of Lords for saying that its application is to be decided entirely by the circumstances of the case.
It is doubtless in accordance with sound principles of jurisprudence that we consider the state of knowledge of the testator and all the circumstances before deciding whether his will is to be cut down by the operation of a general rule, and it is most important to note that the disposal of this estate does not depend on the will alone, but upon the combined effect of the will and the marriage-contract. That is a very important circumstance, because when a man having property or large expectations enters into marriage he generally executes a marriage-contract, and he is advised in making such a contract that he must consider his wife and the possible issue of the marriage if the age of the wife is such that issue may reasonably be looked for. Here very ample provision was made for children, although they were not to get their provisions immediately upon their father's death. There is no law requiring that the father should so provide for his children, and it is an ordinary and reasonable provision that the mother should enjoy the liferent of the whole estate, being bound at the same time to aliment her children. So here we have not the case of a man who without expectation of issue, and with no person interested in his estate except his wife, makes her his sole legatee. It is the case of a man who has by an irrevocable deed provided the bulk of his fortune to his wife and children, and who is now only dealing with the small estate which he kept in his own hands.
If therefore, with the House of Lords, we are to hold it is a question of circumstances whether the settlement is revocable or not, I think the circumstances here are all against the idea that Mr Millar overlooked the possibility of a child being born, and in favour of the view that he executed this settlement as he did because he knew any child was already provided for.
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If that inference can fairly be drawn, then I agree with your Lordships as to the law.
The Court adhered.
Counsel for Reclaimer— Salvesen— A. S. D. Thomson. Agent— Marcus J. Brown, S.S.C.
Counsel for Real Raiser— C. K. Mackenzie. Agents— Mitchell & Baxter, W.S.
Counsel for Creditor Claimants— Wm. Thomson. Agents— Tait & Johnston, S.S.C.
Counsel for Mrs Millar's Executor— J. A. Reid— Cullen. Agent— Marcus J. Brown, S.S.C.