Scottish Court of Session Decisions

Mr and Mrs Hagart were married in 1833. Mrs Hagart was then institute of entail in possession of the entailed estate of Glendelvine.

By antenuptial contract of marriage dated 15th April 1833, Mr Hagart assigned and disponed to Mrs Hagart in liferent, in the event of her surviving him, and to the children of the marriage, excepting the eldest

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child (who would succeed to Glendelvine), the whole estate, heritable and moveable, that might belong to him at the time of his death, subject to a power of apportionment reserved to himself, and failing such apportionment, then equally among them. These provisions Mrs Hagart accepted as in full of her legal rights, and they were declared to be in full of the legal rights of the children of the marriage. In consideration of the said provisions Mrs Hagart granted certain provisions in Mr Hagart's favour by way of annuity out of the entailed estate, in the event of his survivance, and she also granted certain provisions out of that estate to the children who should not succeed to her therein. Mrs Hagart further assigned and disponed to Mr Hagart in liferent, in the event of his surviving her, and to the children of the marriage in fee:—“All and sundry other lands and heritages, debts, sums of money heritable and moveable, real and personal, and all goods and gear of whatever denomination, including household furniture and plenishing, that might belong to her at the time of her death,” excepting always the rents of Glendelvine. By a minute annexed to the antenuptial contract of marriage, dated 2nd January 1840, the parties explained that the exclusion of the eldest child from all share in the provisions made in favour of the children was meant to apply only to the child succeeding to the entailed estate.

By bond of provision dated 8th January 1842 Mrs Hagart bound herself to grant bond over the entailed estate for the benefit of younger children for, “if three or more such children or their representatives, three years' free rent or value of the whole of the said entailed lands and estates equally among them.”

By the antenuptial contract of marriage dated 30th November 1858 of Mrs Amelia Valentine Hagart or Dowie—one of the children of the marriage—Mrs Hagart declared the bond of provision irrevocable, and Mr and Mrs Hagart bound themselves that Mrs Dowie should receive an equal share with the other children of whatever means and estate they might die possessed. Mrs Dowie assigned to her marriage-contract trustees all her share.

On 27th July 1861 Mr and Mrs Hagart executed a mutual trust-disposition and settlement. By this deed Mr Hagart conveyed to trustees, of whom Mrs Hagart was a sine qua non, his whole estate, heritable and move—able, in trust, after payment of debts and expenses, for payment to Mrs Hagart of the free revenue of the residue of his estate for her liferent use allenarly during her life, and to his children equally among them in fee, excepting the child succeeding to Glendelvine. Mrs Hagart on her part, in addition to the annuity and provisions secured to her husband and children out of the rents of Glendelvine, disponed to and in favour of Mr Hagart, in the event of his surviving her, whom failing by his predeceasing her, to their said children equally amongst them, share and share alike in fee, excepting always the child who should succeed to Glendelvine, “All and sundry my whole estate, heritable and moveable, real and personal, presently belonging or which shall belong to me at the time of my death, including such portion of the rents of Glendelvine as shall belong to me or my executors at the period of my death, including also” all policies of insurance on her life. The spouses also revoked all former settlements made by them or either of them, “and reserved to them or either of them, during their joint lives, power to alter, innovate, or revoke the said presents in whole or in part, so far as their respective estates were concerned, and also power to the said James Valentine Hagart, in the event of his being the survivor, to alter, innovate, or revoke the foresaid trust-conveyance and purposes thereof as he should think fit.”

Mr Hagart died on 14th August 1869, and was survived by Mrs Hagart. After his death the estate of Glendelvine was sold with the consent of the three eldest sons of the marriage, as the nearest heirs of entail, and in security of the provisions which she had granted to the younger children out of the estate Mrs Hagart assigned to trustees certain policies of assurance upon her life. After the disentail and sale had been carried through, the debts of both spouses paid, and the future premiums on the policies redeemed, a sum of £22,000 remained for investment, and this sum was left in the possession and control of Mrs Hagart.

In 1894, Mrs Hagart being then eighty-six years of age, a petition was presented by her surviving children (two sons and five daughters), other than her youngest son Francis, praying the Court to sequestrate the estates of the deceased Mr Hagart and of Mrs Hagart, and to appoint a judicial factor to hold and administer them.

On July 19th 1894 the Court dismissed the petition. (Reported ante, vol. xxxi, p. 865, and 21 R. 1052.)

On October 23rd 1894 an action of declarator was raised against Mrs Hagart by the trustees under the mutual disposition and the surviving children other than her youngest son, craving that it should be found and declared, first, that by virtue of the deeds described above “the whole residue and remainder of the estates, heritable and moveable, of the said deceased James Valentine Hagart and of the defender respectively, as at their respective deaths, subject to the liferent by the survivor of the estate of the predeceaser, was irrevocably divided and apportioned between and among the whole children of the marriage, … and that the defender had and has no right or power after the decease of her said husband,. either by gifts inter vivos to one or more of her said children, or by gratuitous gifts inter vivos or by mortis causa settlement, to alter, innovate upon, or revoke the said equal division and apportionment;" and second, “that under and by virtue of a transaction and agreement entered into in the year 1871" by the defender and certain of her children in connection with the proceedings for the disentail of Glendelvine, it had been agreed

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that the equal division of Mr and Mrs Hagart's estates among the whole members of the family provided for by the marriage-contract of 1833, relative minute of 1840, and mutual trust-disposition and settlement of 1861, was and should be fixed, and irrevocable, and that therefore the defender was not entitled, either by gifts, inter vivos, to one or more of her said children, or by gratuitous deed inter vivos, or by mortis causa settlement to alter, innovate upon, or revoke the said transaction and agreement and said equal division of said joint estates, or to prefer one or more of the said children to the rest.”

There were further conclusions for decree ordaining the defender to account for her intromissions with the estate of her deceased husband.

The pursuers after narrating the deeds quoted above, averred that Mr Hagart had left estate exceeding his debts, and consisting in part of a claim for the amount of improvement expenditure laid out by him on the estate of Glendelvine, and of amounts assured by various policies on Mrs Hagart's life; that Mrs Hagart's estate at this time consisted solely of her interest in Glendelvine, and her interest, if any, in these policies; that Mr Hagart's estate could not have been extricated from that of his widow without sacrificing her life interest in the entailed estate; that in order to provide a residuary fund for Mrs Hagart's benefit it was resolved to sell the estate; that to facilitate this, in the year 1871 her three eldest sons agreed to accept sums greatly less than the true value of their interests as consideration for consenting to the disentail; that “(Cond. 10) … It was a condition of their doing so, and of the transaction and agreement between them and the defender, that the equal division of their father's and the defender's estates among the whole members of the family, provided for by the marriage-contract and mutual disposition, was and should be fixed and irrevocable;" that on the same footing the younger children agreed to accept the insurance policies as security for the provisions made for them by their mother, though these policies belonged to Mr Hagart's estate; that in consequence of this agreement it became unnecessary to separate the two estates, and that the two had been treated as one, and managed as such, Mrs Hagart enjoying the whole income, and Mr Hagart's trust being allowed practically to remain in abeyance.

The pursuers further averred (Cond. 16 and 17) that Mrs Hagart's health was impaired, and her mind weakened and rendered facile by age, and that she had been for some time completely subservient to the will of her youngest son, a man of loose and disorderly habits, who had gained a dominating influence over her, which he used to obtain sums of money from her, “that he had already received from her sums of money largely in excess of the sum to which his just share in the estates of his parents could possibly amount, … to the reduction of the capital in which her whole children are entitled to share equally.”

They pleaded—“(1) In respect of the various deeds set forth in the summons, and on a sound construction of their terms, the whole residue of the estates of Mr and Mrs Hagart was irrevocably destined, divided and apportioned to and among the children of the marriage in equal shares, and the defender had and has no power after her husband's death to revoke, alter, nor innovate upon the said equal division and apportionment. (2) Separatim. By the transaction and agreement set forth in the summons, the joint estate of Mr and Mrs Hagart was finally and irrevocably divided and apportioned among the children of the said marriage equally, and the defender is neither entitled to revoke, alter, or innovate, upon the said division and appointment by act or deed inter vivos, nor by testamentary writing to taka effect after her death.”

The defender averred that all Mr Hagart's property had been swallowed up in paying his debts, and that the whole remaining estate belonged to her, and had been dealt with as her absolute property.

She pleaded—“(3) The pursuers' averments are irrelevant. (5) The alleged transaction and agreement can only be proved by the writ or oath of the defender.”

On 9th January 1895 the Lord Ordinary pronounced the following interlocutor—“Finds that the averments of the pursuers are irrelevant to support the conclusions of the summons, except in so far as they relate to the defender's intromissions with the estate of the deceased James Valentine Hagart, and appoints the defender to lodge the account called for.

“ Opinion.—If the averments made by the pursuers in articles 16 and 17 of the condescendence are well founded in fact, it is impossible not to sympathise to some extent with their desire to save this old lady's estate from further dilapidation. But they recently failed in an attempt to supersede her in its management by the appointment of a judicial factor, and they do not profess even now that there is any case for placing her under curatory. The present action is to be judged of, therefore, not by anything in her condition which requires the law to protect her against herself, but by the right of the pursuers, in their own interest, to restrain her in the management of her property.

It appears that since the death of the late Mr Hagart in 1869 there has been no attempt to extricate his estate from that of his widow, and that both estates have been administered by her as one. In so far as the action seeks now to bring about such extrication, it is admittedly relevant, though the task after such an interval of time may not be an easy one, But the main object of the action is to declare that the fee of Mrs Hagart's own estate is irrevocably destined in equal shares to the whole children of the marriage, and that the defender has no right or power, either by gifts inter vivos to one or more of her children or by mortis causa settlement, to alter or revoke this equal division.

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I am of opinion that the averments of the pursuers on this part of the case are irrelevant, for the simple reason that, under the deeds which they found on, they do not and cannot pretend that their right is anything higher than a right to participate equally in whatever estate Mrs Hagart may leave at her death, and that such a right of succession—protected it may be, but still a right of succession—does not entitle the pursuers to insist that the fiar, during her lifetime, shall be restrained in the absolute use and administration of her estate. That being my view, I purposely abstain from entering on some of the topics which were discussed with reference to the construction of the deeds. It is possible that questions may arise at Mrs Hagart's death if she shall leave any deed or deeds, testamentary in their conception or effect; and it is better not to anticipate such questions.

I do not forget the rule laid down in the leading case of Arthur v. Lamb, 8 Macph. 928, according to which Sir Charles Lamb's right over the portion of his estate destined to his children was held to have been subject to the condition ' that he could not defeat or prejudice the children's right of succession by any merely gratuitousalienations, whether by deed inter vivos, by disposition mortis causa, or by testament.' I doubt whether the kind of inter vivos deed there meant was anything but a gift to take effect at death, which would of course have been a fraud upon the contract in the sense explained by Lord Curriehill at p. 22 of the case of Champion v. Duncan, 6 Macph. 15. But the estate provided to the children in Sir Charles Lamb's case was one-half of the property belonging to him at the dissolution of the marriage, and was therefore capable of ascertainment during his life. Here, on the other hand, the estate provided to the children is simply what may belong to Mrs Hagart at the time of her death; and I know of no principle of law by which the children can have a voice in determining whether that is to be much or little, unless they are prepared to aver that something is being done which, under cover of an out-and-out gift, is truly intended to take effect only at death.

So much for the deeds. The antenuptial contract of Mr and Mrs Hagart, the minute annexed thereto, Mrs Dowie's marriage-contract, and the mutual settlement, are all alike in conferring on the pursuers nothing but a right of succession.

With regard to the alleged agreement of 1871, it is not said to have been reduced to writing, and I doubt very much whether an agreement of so unusual a character could be proved otherwise. But it is unnecessary to consider that point, because there also the pursuers' averments come to no more than this, that the equal division of the joint estates of husband and wife was to be fixed and irrevocable, that is to say, so far as the defender is concerned, that whatever she might leave at her death was to be equally divided among her children. Such an agreement, even if proved, would give no right to the children to stay her hand during her life.

The pursuers' counsel urged that they had made such averments of facility and circumvention as would support a reduction of a will. The law gives a remedy for circumvention when it occurs, but I never heard of its interfering to prevent circumvention, and I know not who would have a title to set it in motion except the person to whose lesion the circumvention is supposed to operate, that is to say, the victim of it.

For these reasons I shall find that the averments of the pursuer are irrelevant to support the conclusions of the summons, except in so far as they relate to the defender's intromissions with the estate of the deceased James Valentine Hagart, and with reference to these alleged intromissions I shall appoint the defender to lodge the account called for.”

The pursuers reclaimed, and argued—(1) An irrevocable equality of division had been created by the marriage-contract and succeeding deeds. The provisions in the marriage-contract in case of the wife were in contrast to those in case of the husband, she having bound herself to equal division among her children without any power of apportionment such as had been reserved by him. Further, the minute of 1840 emphasised this indefeasable equality of division as to the wife's estate. By the mutual disposition of 1861, the wife—even if it were held that under the marriage-contract she had an implied power of apportionment—clearly deprived herself of it. This was a contract, and after her husband's death the defender could not in any way alter the equality of division. This equality having been created the defender was not entitled to alter it by gifts to one child which would prejudice the rights of the others. The rule laid down in Arthur v. Lamb, June 30, 1870, 8 Macph. 928, applied to such gifts. The dictum of Lord Watson in Macdonald v. Scott, L.R. 1893, App. Cas. 642, at p. 655, did not support the view that a parent was entitled by inter vivos gifts to one child to defeat provisions made to the other children. The pursuers here had a jus crediti which entitled them to restrain the defender from gratuitously alienating her estate— Hogg v. Campbell, March 18, 1863, 1 Macph. 647. (2) Even if the pursuers failed on the deeds, they were entitled to a proof of their averments as to the agreement of 1871, which they could prove both by correspondence and by parole evidence. (3) In any view the defender was bound to account for her intromissions with her husband's estate.

Argued for the defender—The declarator was incompetent during the life of the defender, for there might be no estate left to divide at her death. (1) The marriage-contract gave purely testamentary provisions to her children, and there was nothing in it to deprive the defender of her power of dealing with her own estate as she pleased; she was fiar now of all the estate, and accordingly she might alienate to her

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children or anyone else during her life— Macdonald v. Scott. The mutual disposition was a revocable deed, and was to be regarded as containing two wills— Mitchell's Trustees v. Mitchell, June 5, 1877, 4 R. 800. If it were a contractual deed, one of its provisions would be invalid as being inconsistent with the marriage-contract, and as being actually a fraud upon it. There was no jus crediti in the other children under what was a purely testamentary deed, to entitle them to restrain the defender from alienating her estate. (2) The agreement of 1871, even if proved, could be of no help to the pursuers, except to show that the defender could not alter the disposition of her estates at her death, which she did not dispute. There was nothing averred as to her power of alienation by inter vivos gifts being restrained by this agreement. Moreover, it could only be proved by writ or oath— Edmonston v. Edmonston, June 7, 1861, 23 D. 995. (3) The burden of accounting should be thrown upon the trustees who had consented to the mixing up of the two estates.

At advising—