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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Farquharson v. Burnett and Others [1900] ScotLR 37_574 (20 March 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0574.html
Cite as: [1900] ScotLR 37_574, [1900] SLR 37_574
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SCOTTISH_SLR_Court_of_Session
Page: 574↓
Court of Session Inner House First Division.
v.
Succession
Succession — Accretion — Conditio si sine liberis.
Facts:
The conditio si institutus sine liberis decesserit is not applicable to the children of an illegitimate child.
Held ( following Naismith v. Boyes, May 27, 1898, 25 R. 899; affirmed July 28, 1899, 1 F. (H.L. 79) that a child who has taken a conventional provision under his parent's settlement is also entitled to legitim out of provisions which have lapsed and fallen into intestacy.
A testatrix left her whole estate to A, B, C, and D, “my lawful children, share and share alike.” The deed contained no survivorship clause or destination-over. D, though described as one of the lawful children, was in reality illegitimate. B, C, and D all predeceased the testatrix, the two last leaving issue. Held (1) that no right vested in D's children; (2) that a child of C was entitled to her parent's share under the conditio si sine liberis; but (3) not to any part of the lapsed shares, in respect ( a) ( following Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191) that the gift to the children was so expressed as to create a severance of their interests, and thus to prevent accretion from taking place ex lege, and ( b) separatim that a child cannot take under the conditio any more than the share destined to its parent; (4) that the lapsed shares fell into intestacy, and (5) that A, the surviving child, was entitled to claim legitim out of the amount thus falling into intestacy, in addition to the share destined to herself.
Observed ( per the Lord President) that Blair's Executors v. Taylor, July 18,1876, 3 R. 362, is overruled by Paxton's Trustees v. Cowie, cit. supra.
This was a special case presented for the opinion and judgment of the Court on questions arising under the mutual disposition and settlement of Archibald Farquharson and Mrs Jane Wilkie or Farquharson his wife. The circumstances as stated in the case were as follows:—“By mutual disposition and settlement dated 30th November 1878, and registered in the Books of Council and Session 18th February 1896, entered into between Archibald Farquharson, residing in Dundee, and Mrs Jean or Jane Wilkie or Farquharson, his wife, the said Archibald Farquharson disponed in favour of the said Mrs Jean or Jane Wilkie or Farquharson, in case she should survive him, in liferent for her liferent use allenarly, and on the death of the survivor of them, to and in favour of the said Mrs Mary Elder Farquharson or Niddrie, spouse of the said David Niddrie, joiner, Cape Town, Cape of Good Hope, the said Annie Stewart Farquharson, William Wilkie Farquharson, carpenter, Victoria Road, Dundee, and Mrs Jane Smith Farquharson or Burnett, spouse of John Burnett, seaman, residing in Glebe Street, Dundee, his ‘lawful children,’ equally among them, share and share alike, all and sundry, his whole heritable and moveable estate at the time of his decease, and appointed the said Mrs Jean or Jane Wilkie or Farquharson, in case she should survive him, to be his sole executrix; and in the event of her predeceasing him, the said Mrs Mary Elder Farquharson or Niddrie, Annie Stewart Farquharson, William Wilkie Farquharson, and Mrs Jane Smith Farquharson or Burnett, and the survivor or survivors of them, to be his sole executor or executors; and the said Mrs Jean or Jane Wilkie or Farquharson, with consent of her said husband, who thereby renounced his jus mariti and right of administration of her estate, disponed and made over to and in favour of her husband the said Archibald Farquharson, in the event of him surviving her, in liferent for his liferent use only, and on the death of the survivor of her and her said husband to and in favour of the said Mrs Mary Elder Farquharson or Niddrie, Annie Stewart Farquharson, William Wilkie Farquharson, and Mrs Jane Smith Farquharson or Burnett, equally among them, share and share alike in fee, all and sundry her heritable and moveable estate of whatever nature or denomination the same might be which should belong or be addebted to her at the time of her decease,
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and nominated the said Archibald Farquharson, in case he should survive her, whom failing the said Mrs Mary Elder Farquharson or Niddrie, Annie Stewart Farquharson, William Wilkie Farquharson, and Mrs Jane Smith Farquharson or Burnett, and the survivors or survivor of them, to be her sole executors or executor. The said Archibald Farquharson predeceased the said Mrs Jean or Jane Wilkie or Farquharson. The said Mrs Jean or Jane Wilkie or Farquharson died on the 31st day of December 1895. The said Mrs Mary Elder Farquharson or Niddrie predeceased both the said Archibald Farquharson and the said Mrs Jean or Jane Wilkie or Farquharson, leaving lawful issue, being the second parties. She was survived by her husband the said David Niddrie. The said William Wilkie Farquharson predeceased both the said Archibald Farquharson and the said Mrs Jean or Jane Wilkie or Farquharson without leaving lawful issue, but was survived by his wife, who is still alive. The said Mrs Jane Smith Farquharson or Burnett also predeceased both the said Archibald Farquharson and the said Mrs Jean or Jane Wilkie or Farquharson, leaving one daughter, the said Annie Farquharson Burnett. The said Annie Stewart Farquharson having given up on oath an inventory of the personal estate and effects of the said Mrs Jean or Jane Wilkie or Farquharson, was duly confirmed as her executrix, conform to testament testamentar dated 1st Sepember 1896.
The said deceased Mrs Mary Elder Farquharson or Niddrie, the mother of the said second parties, is described along with the said Annie Stewart Farquharson, William Wilkie Farquharson, and Mrs Jane Smith Farquharson or Burnett, as the ‘lawful’ child of the said Archibald Farquharson. The said Mrs Mary Elder Farquharson or Niddrie was not a child of the said Archibald Farquharson, but was an illegitimate daughter of his wife, the said Mrs Jean or Jane Wilkie or Farquharson. As a child the said Mrs Niddrie was brought up with and treated as one of the family. At the age of sixteen she entered domestic service, and at the age of seventeen she became engaged to Mr Niddrie, to whom she was married in 1859, when she was twenty years old. The other sisters learned dressmaking with their aunts, who were dressmakers. During the period Mrs Niddrie was in service she frequently visited her mother's house, and about three months prior to her marriage she returned to her mother's house and lived there until the marriage took place. The first party to the case is the said Annie Stewart Farquharson. The second parties are the lawful children of the said Mrs Mary Elder Farquharson or Niddrie. Two of the second parties, Henry James Niddrie and Emily Ann Niddrie, are still in minority. The third parties are the only child of the said Jane Smith Farquharson or Burnett and her curator.
The said Archibald Farquharson died possessed of no estate. The estate falling to be administered by the first party, as executrix of Mrs Jean or Jane Wilkie or Farquharson, amounts to the sum of £756, 17s. 7d. This estate belonged solely to Mrs Jean or Jane Wilkie or Farquharson.”
The following were the questions of law—“(1) Are the second parties entitled to any share in the estate of the said Mrs Jean or Jane Wilkie or Farquharson? (2) Are the third parties entitled to any share in the estate of the said Mrs Jean or Jane Wilkie or Farquharson? (3) Are the second and third parties, or either of them, entitled to participate in the shares which would have been taken by the predeceasing children if they had survived Mrs Farquharson, or is the first party, as an individual, entitled to these shares? (4) Have the shares of the estate of the said Mrs Jean or Jane Wilkie or Farquharson, provided by her to Mrs Niddrie, William Wilkie Farquharson, and Mrs Jane Smith Farquharson or Burnett, who predeceased her, or any of these shares, fallen into intestacy? (5) In the event of the fourth question being answered to any extent in the affirmative, is the first party, as the only surviving child of Mrs Farquharson, entitled to claim legitim out of any part of the estate of the said Mrs Jean or Jane Wilkie or Farquharson which may have fallen into intestacy, in addition to taking the provisions conferred on her by the mutual disposition and settlement of her parents?”
Argued for the first party— On the first question—The question should be answered in the negative. The conditio si sine liberis was not applicable to the children of an illegitimate child. This was as yet an undecided question, except by the Lord Ordinary ( Barcaple) in Martin's Trustees v. Milliken, December 24, 1864, 3 Macph. 326, who held that the conditio did not apply. In law an illegitimate child was a stranger, and the conditio has never been extended to any case where there was no legal relationship. It was an artificial rule, and would not now be extended to any cases not covered by the previous decisions— Earl of Lauderdale v. Royle's Executors, May 19, 1830, 8 S. 771; Hall v. Hall, March 17, 1891, 18 R. 690. The law of Scotland was in general unfavourable to illegitimate children— Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.), 63. On the second, third, fourth, and fifth questions.—Admitting that the third party Annie Farquharson Burnett is entitled to her mother's share in virtue of the conditio si sine liberis, she had no right to participate in the lapsed shares— Young v. Robertson, February 14, 1862, 4 Macq. 337; Graham's Trustees v. Graham, May 26, 1868, 6 Macph. 820; Neville v. Shepherd, December 21, 1895, 23 R. 351; Ensor's Trustees v. Richter, February 16, 1900, ante p. 424. On that assumption the lapsed shares accresced to the first party. Although there was no survivorship clause, accretion took place ex lege. This was decided in Blair's Executors v. Taylor, January 18, 1876, 3 R. 362, which was not overruled by Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191. That case did not establish a general rule against accretion where there was severance of interests—
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Menzies' Factor v. Menzies, November 25, 1898, 1 F. 128. On the assumption, however, that the first party was held not to be entitled to the lapsed shares by accretion, these shares fell into intestacy, and the third party was entitled to claim legitim, on the analogy of Naismith v. Boyes, July 28, 1899, 1 F. (H.L.)79. That case established the general principle that the acceptance of conventional provisions only precluded the assertion of legal claims against the settlement, and left lapsed shares open to such claims. The present case was a fortiori of Naismith, for here there was no declaration that the acceptance of the provision should be in full satisfaction of legal claims. Argued for the second parties—The first question should be answered in the affirmative. The only authority against the application of the conditio to an illegitimate child was the opinion of Lord Barcaple in Martin's Trustees v. Milliken, December 24, 1864, 3 Macph. 326. But in that case the claimant was the child of a brother, and the element of in loco parentis was wanting. The principle of the conditio was to give effect to the presumable intention of a testator to favour the issue of an institute to whom he was in the position of a parent. There could hardly be a stronger case for presumed intention than the present, where the testatrix had shown her favour for the illegitimate child by classing her among her natural children. Legal relationship was not a sine qua non for the application of the conditio; the principle on which it was founded was predilection from natural affection— Douglas's Executors, Feb. 5, 1869, 7 Macph. 504; Blair's Executors v. Taylor, July 18, 1876, 3 R. 362. On the other questions they adopted the argument for the third parties.
Argued for the third parties—No right vested in the second parties. On the second and third and fourth questions it was not disputed that the conditio applied to the case of the third party to the extent of entitling her to her mother's share. On that footing there were two lapsed shares, and the third party was entitled to share them equally with the first party. The arguments against that position were ( a) that there was no accretion; ( b) that the third party was not entitled under the conditio to any more than her mother's share. On ( a) the argument for the first party was adopted; on ( b) the conditio carried to the child all that her mother would have taken had she been alive, in cases where, as here, there was no survivorship clause— Mowbray v. Scougall, July 9, 1834, 12 S. 910; Thornhill v. Macpherson, Jan. 29, 1841, 3 D. 395; Halliday v. Macallum, Nov. 9, 1869, 8 Macph. 112. All the cases to the contrary cited by the first party (supra) were cases where there was a survivorship clause. Alternatively, and on the assumption that it was held that the third party could not take under the conditio more than her mother's share, it was argued that the lapsed shares fell into intestacy under the rule of Paxton's Trustees v. Cowie, July 16, 1886, 13 R. 1191, and that the first party was not entitled to legitim. The claim of legitim was an unwarranted deduction from the recognition of jus relictæ in Naismith v. Boyes ( cit. supra), and apart from that decision there was nothing to support it.
At advising—
Mr Farquharson predeceased his wife, and she died on 31st December 1895. Mrs Niddrie predeceased both Mr and Mrs Farquharson leaving lawful issue, who are the second parties to the case. William Wilkie Farquharson also predeceased both Mr and Mrs Farquharson without leaving lawful issue, and Mrs Burnett predeceased both Mr and Mrs Farquharson, leaving one daughter, Annie Farquharson Burnett, who (with her curator) is the third party to the case. Miss Farquharson survived both her parents, and was duly confirmed as executrix of her mother. She is the first party to the case.
Mrs Niddrie, although she is described in the mutual disposition and settlement, along with the other three children, as a “lawful child” of Mr Farquharson, was not so in fact, having been an illegitimate child of Mrs Farquharson, but she was brought up as a member of their family by Mr and Mrs Farquharson, and otherwise treated in all respects as one of their children. Mrs Niddrie married, and the second parties are her lawful children.
The whole estate to which the present case relates belongs to Mrs Farquharson.
The first question put in this case is, whether the second parties are entitled to any share in the estate of Mrs Farquharson, and I am of opinion that they are not so entitled. The answer to this question depends upon whether the conditio si institutus sine liberis decesserit applies to the
Page: 577↓
The second question is, whether Miss Burnett, the third party, is entitled to any share in the estate of Mrs Farquharson, and I am of opinion that she has right to the share which Mrs Burnett, her mother, would have taken had she survived Mrs Farquharson. It appears to me to be clear that she has this right by virtue of the conditio si sine liberis decesserit.
The third question is, whether the second and third parties, or either of them, are entitled to participate in the shares which the predeceasing children of Mrs Farquharson would have received if they had survived her, or whether the first party as an individual has right to these shares, and I consider that (except in so far as Miss Burnett has right to the share primarily destined to her mother) none of these three parties are entitled to participate in the shares referred to by force of the mutual disposition and settlement, seeing that the gift to the children is so expressed as to create a severance of their interests, and thus to prevent accretion from taking place ex lege, according to the principles explained in the case of Paxton's Trustees v. Cowie, 13 R. 1191. Reference was made in support of the claim to the case of Blair's Executors v. Taylor, 3 R. 362, but I do not think that that case, in so far as it relates to accretion, can stand with Paxton's Trustees v. Cowie, which was a decision of the whole Court. The case of Menzies' Factor v. Menzies, 1 F. 128, was also referred to as supporting the view that there was accretion, but none of the specialties upon which the decision in that case proceeded are present in this case.
With reference to the case of Miss Burnett, I may add that I think that her claim to participate in these shares would have failed upon another ground, viz., that although she has, in my view, right, by virtue of the conditio si sine liberis, to the share bequeathed to her mother, she would not by virtue of that conditio have been entitled to participate in such lapsed shares, even if these shares had been destined to her mother, failing the persons to whom they were primarily bequeathed— Vide Graham's Trustees v. Grahams, 6 Macph. 820; Neville v. Shepherd, 23 R. 351; and the recent case of Watson and Others (Ensor's Trustees) v. Richter and Others, February 16, 1900 ( ante, p. 424). The rule applicable to such a case was thus stated by Lord M'Laren in Neville v. Shepherd— “It is settled as matter of legal implication, as distinguished from construction, that a child under the conditio never takes more than what is described as the parent's original share—that is, the share which the parent would take supposing everyone in the destination to survive the period of payment.”
With reference to the fourth question, I think that the shares of the estate of Mrs Farquharson bequeathed by her to Mrs Niddrie and William Wilkie Farquharson have fallen into intestacy, but that the share bequeathed to Mrs Burnett has passed to her daughter Miss Burnett by force of the conditio si sine liberis decesserit, as already explained.
With respect to the fifth question, I consider that the first party, as the only surviving child of Mrs Farquharson, is entitled to claim legitim out of the two shares which have, in my judgment, fallen into intestacy, in addition to taking the provisions conferred upon her by the mutual disposition and settlement of her parents. This appears to me to result from the views expressed in Naismith v. Boyes, 25 R. 899, 1 F. (H.L.) 79, in which it was held that a declaration by a testator in his settlement that certain provisions which he made for his wife and children were to be in full of all claims by them for terce, jus relictœ, legitim, or otherwise, was to be construed as excluding such claims in so far only as conflicting with the settlement, and that
Page: 578↓
The Court pronounced this interlocutor—
“Answer the first question in the case in the negative: In answer to the second question, say that the third party Miss Burnett has right to the one-fourth share which her mother Mrs Burnett would have taken if she had survived Mrs Farquharson: In answer to the third question, say that the second parties are not entitled to participate in the shares which would have been taken by the predeceasing children if they had survived Mrs Farquharson; that the third party Miss Burnett is entitled to the share bequeathed to her mother Mrs Burnett, and that the first party and third party Miss Burnett are entitled to participate in the shares which have fallen into intestacy: In answer to the fourth question, say that the shares of the estate of Mrs Farquharson bequeathed by her to Mrs Niddrie and William Wilkie Farquharson have fallen into intestacy: In answer to the fifth question, say that the first party, as the only surviving child of Mrs Farquharson, is entitled to claim legitim out of the parts of the estate which have fallen into intestacy, in addition to the provisions bequeathed to her by the mutual disposition and settlement of her parents: Accordingly, find the first party entitled to five-eighths of the free residue of the estate of the said Mrs Farquharson, and the third parties entitled to three-eighths thereof, and decern.”
Counsel for the First Party— Salvesen, Q.C.— Adamson. Agents— W. & J. L. Officer, W.S.
Counsel for the Second Parties— Young— W. Thomson, Agents— Nisbet & Mathison, S.S.C.
Counsel for the Third Parties— Greenlees— Grainger Stewart. Agents— Turnbull & Herdman, W.S.