Scottish Court of Session Decisions

The late William Walker, shipmaster, Tayport, died in January 1897, survived by his widow but without issue. He left a general disposition and deed of settlement dated 1881, by which he gave, granted, assigned, disponed, devised, legated, and bequeathed to and in favour of his wife Elizabeth Walker “and heirs and assignees, heritably and irredeemably,” all his estate, heritable and moveable, and he nominated and appointed his said wife to be his sole executor. The general settlement then proceeded—“But these presents are granted and shall be accepted by the said Elizabeth Walker, and the foresaid lands and other heritages hereby conveyed are disponed with and under the burden of the payment of my whole just and lawful debts, and sick-bed and funeral charges, and of the payment of the following legacies, viz.—at my wife's death what she had from me shall go to my nephews and nieces,* all to have an equal share. Would like the old house where we were all born to be kept in the family. *What I mean by my nephews and nieces is my three sisters' families—the Stephens, Balsillies, and Marion Cumming.

W. W.”

A holograph codicil dated in 1891 was docqueted on the general settlement in the following terms, viz.—“I appoint James Stephen, William Stephen, and David Stephen to be trustees; also my wife Elizabeth Walker. I confirm the above will with the exception that I leave my wife Eliza Walker sole trustee, to use principal of money if she requires it.

William Walker.”

On the death of her husband Mrs Walker entered on the possession of the estate and was confirmed executrix. She did not, however, make up a title to the heritable estate. Upon her death in November 1897 a petition was presented to the Court of Session for appointment of a judicial factor on the trust-estate, and Mr James Cram was appointed. After realising the heritable and ingathering the moveable estate there was in the factor's hands a sum of about £1350. He then raised this action of multiplepoinding.

A claim was lodged on behalf of the persons, twelve in number, described in the testator's general settlement, viz.—“my nephews and nieces—my three sisters' families, the Stephens, Balsillies, and Marion Cumming.” They maintained that Mrs Walker, the widow, was only trustee under the said general settlement, with a power (which she did not exercise, or which at all events she only exercised to a very small extent) to use a part of the capital of the estate for her necessities. Alternatively, they maintained that even if it were held that, on a sound construction of the settlement, Mrs Walker was fiar of part or all of the estate of her husband, the claimants were substitutes to her under a destination which she did not evacuate, and therefore that they were entitled to the said estate, heritable and moveable, of William Walker.

A claim was also lodged on behalf of Mrs Walker's heir-at-law, who averred that the whole of William Walker's estate passed to his widow, and that she died intestate quoad the heritable estate. He therefore claimed the heritable property forming part of the trust-estate, and an equal portion, along with the claimants to be mentioned, of the moveable estate left by Mrs Walker under a will left by her.

A number of children of brothers of Mrs Walker, including the reclaimers, also lodged claims which they based upon the contention that the fee of William Walker's estates, heritable and moveable, had passed to her at his death. They made alternative claims either on the assumption that the estates which they alleged Mrs Walker derived from her husband on his death had been conveyed to them by her said will, or on the assumption that in regard to these estates she had died intestate.

Mrs Walker left a will dated in 1892, and relative codicils dated in 1894. It dealt only with a sum in the Union Bank at Dundee, which in 1892 amounted to £80, and in 1894 to £100, and with certain articles belonging to herself.

The Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Repels the claim for Mrs Sarah Lees Lindsay or Stewart and others; also the claim for David George Lindsay; and also the claim for John Roberts Lindsay: Ranks and prefers the claimants, Marion Mansfield Cumming and others, to the whole fund in medio, in terms of their condescendence and claim: Finds no expenses due to or by any of the claimants in the competition, and decerns.”

Page: 117↓

Opinion—“The late Mr William Walker, shipmaster at Tayport, made his will by filling up in his own hand one of those skeleton forms which I believe can be obtained at a stationer's, and it must be admitted that he and the Birmingham printer between them have not made a very good job of it. But I think it is not difficult to discover what his real meaning was. He had not very much estate to leave, and his first care very properly was that his wife should derive the utmost possible benefit from his estate. Next to her he seemed to have wished to benefit his nephews and nieces, the children of his three sisters.

Now, the way in which he proceeded to do that was by leaving everything to his wife, whom he appointed his executor, but under burden of payment at her death of what he calls legacies, or rather what the printer calls legacies, but which he afterwards described as ‘what she had from me,’ to the nephews and nieces. Then he says that he would like the old house where they were all born to be kept in the family (but that of course is simply precatory), and before finishing the deed he appoints his wife and two other persons as his trustees. Then it seems to have occurred to him at a later stage, ten years afterwards, that it might not be sufficient that his wife should merely have the income of his estate, and accordingly he adds what is truly a codicil to this effect, ‘I confirm the above will, with the exception that I leave my wife, Eliza Walker, sole trustee, to use principal of money if she requires it.’

Well, now it might perhaps be maintained that his true meaning in all this was to give his wife the fullest power of spending his estate for her own use and benefit, but not of willing it away. It is, however, quite unnecessary to decide the case upon any of the rules which govern ‘protected succession,’ that being in truth a doctrine rather applicable to marriage—contracts than to testamentary deeds, although in some cases it has been applied to testamentary deeds. I say that, because, to take the lowest view for the nephews and nieces who are claimants in this process, it seems to me that there was a valid substitution of these persons to the widow, she being in that view full fiar although she was called trustee, being entitled to spend the estate as she liked and even to will it away, but the intention being that if she did not will it away it should go to the favoured legatees of the second class. This intention, I think, is to be gathered from the deed as a whole, but in particular from the fact that he burdened his wife with the payment of the legacies, as he calls them, to his nephews and nieces; that he appointed her a trustee, and that he said they were to have at her death all that she had from him.

Now, it is said for her relations who are here claiming the estate that this was not a substitution because it was a mixed succession, and in cases of moveables or mixed succession substitution is not to be presumed. That is perfectly true. But the presumption against substitution means no more than this, that in moveable and mixed succession a gift over is in dubio to be read as if intended merely to provide for the case of the primary legatee predeceasing the testator or the period of vesting. There is no law to the effect that there cannot be substitution in moveables if the intention is clearly expressed, and if the moveable estate can be clearly identified. But the expression of the intention here is, I think, quite clear. It is also quite possible to identify the estate because the widow only survived her husband for a few months.

She had nothing of her own except a little money which she dealt with in her own will, and although she had proceeded during those few months to ingather the estate, and even to alter some of the investments (taking them, I observe in passing, in her own name as trustee), still it is the easiest thing in the world to identify this estate, because it simply consists of everything she had except her money in the bank and her personal belongings. Therefore it seems to me there are here present all the elements which are required to constitute a valid substitution in moveables, and if that be so, it is not maintained, and it cannot be maintained, that Mrs Walker ever attempted to evacuate the substitution by any deed of her own. Accordingly, I shall sustain the claim for the husband's relations, and repel the claims for the heir-at-law and next of kin of the wife.”

Certain of the claimants, being children of a brother of Mrs Walker, reclaimed.

Argued for the reclaimers—This is a case of a mixed estate, and our rules of moveable succession apply— Bell's Executors v. Borthwick, 24 R. 1120. The substitution is therefore evacuated by the wife taking. There was no trust in the wife, because she is only made trustee for herself, and in that case there is no difference whether a person is constituted trustee or not, he takes without trust limitations— Paul v. Hume, 10 Macph. 937.

Argued for the respondents Marion Cumming and others—There is no absolute gift to Mrs Walker. Trustees are appointed. Bell's Executor is based on the fact that there is there no trust. There is by implication here a limitation of Mrs Walker's right to a liferent, viz., from the right to encroach on capital given by the codicil—M'Laron on Wills (3rd ed.), p. 322.