Scottish Court of Session Decisions

This was a special case involving the question whether the conditio si testator sine liberis decesserit applied to operate revocation of the will of the deceased John Rankin, coalmaster, Glasgow, who died on 19th October 1901, leaving a widow, who was the first party to the case, and an only child, a son in pupilarity, whose factor loco tutoris was the second party.

The following facts, inter alia, were stated in the case:—The deceased John Rankin was married in 1893, and a day or two before his marriage he executed a holograph will in the following terms:—“I, John Rankin Jr., coalmaster, 28 St Enoch Square, Glasgow, being about to marry, and being desirous of providing for my wife in the event of my death, hereby appoint my brother Gavin Hamilton Rankin to be my sole executor, whom failing Alexander Bell Ferguson, writer, Hope Street, Glasgow, empowering him to realize my whole estate, and that for the following purposes:—viz. (1) To pay all my just and lawful debts, deathbed, and funeral expenses, (2) to pay, transfer, and hand over to my intended wife, Margaret M'Connell, residing at 25 Percy Gardens, Tynemouth, should the marriage be solemnized, the residue and remainder of my estate, and should she desire it, to transfer any shares in Limited Companies, without realising same, to her: In respect whereof I have subscribed these presents, written on this page by myself, on the twenty-eighth day of August Eighteen hundred and ninety-three. ( Signed) John Rankin Jr.”

Page: 754↓

On executing this will the testator handed it to his brother Gavin Hamilton Rankin, the second party, to be kept by him and opened on the testator's death.

The testator was married on 30th August 1893 to Miss M'Connell, and on 21st October 1896 the only child of the marriage was born.

The testator died of enteric fever, and was ill for fully five weeks before his death, but during this time he was unable to attend to his affairs. No other testamentary writing than the will above quoted was known to be left by the testator.

The testator left both heritable and moveable estate. The heritable estate, all of which the testator acquired and succeeded to subsequently to the date of his will quoted above, included a villa, of which, in terms of the destination, the first party was liferentrix, and the child of the marriage as heir of her father was the fiar.

The value of the deceased's heritable estate exclusive of the villa was about £1400, and the value of his moveable estate was about £13,400, of which £2700 was invested in heritable bonds.

In addition to the narrative of the above facts in the case, a minute was lodged by the parties and adopted as part of the case, which stated that in 1894 the testator assigned to his wife certain policies of insurance on his life, on the following narrative, viz.—“Seeing that I have not yet made any marriage provision for my wife, and with the view of making such provision.”

The first party maintained that the will was valid notwithstanding the subsequent birth of the pupil child, and that the will effectually disposed of the whole estate of the deceased, both heritable and moveable.

The second party maintained that the maxim si testator sine liber is decesserit applied, and that the will was revoked by the birth of the child.

At the hearing the first party departed from the contention that the testator's heritable estate was carried by his will.

The only question of law which it is necessary to notice for the purposes of this report was as follows:—“Was the said will of the late John Rankin revoked by the birth of his son?”

Argued for the first party—It was a question of circumstances whether a will was revoked by the birth of a child. In the present case the circumstances were such as to make it clear that the testator intended that his will should receive effect; it had been given to the second party for that purpose, and had been left with him during the five years which elapsed between the birth of the child and the death of the testator without alteration— Millar's Trustee v. Millar, July 20, 1893, 20 R. 1040, 30 S.L.R. 865; Ersk iii. 8, 46; Watt v. Jervie, 1760, M. 6401. The most recent decision was in the case of M'Kie's Tutor v. M'Kie, February 16, 1897, 24 R. 526, 34 S.L.R. 399. That case, however, was distinguished from the present by the fact that the will there under consideration was a universal settlement, and in the present case the will which the first party sought to support carried only the moveable estate of the testator, and the presumption in favour of revocation did not hold in the case of a partial settlement— Yule v. Yule, 1758, M. 6400. M'Kie's case was further distinguished by the difference in the time which elapsed in that case and in the present between the birth of the child and the death of the testator. All the considerations which had been held to overcome the conditio were in favour of the first party— Colquhoun v. Campbell, June 5, 1829, 7 S. 709, Lord Pitmilly, at p. 12. The terms of the assignation in 1894 did not affect the presumption; the language there employed only meant that no provision had been made which was protected.

Argued for the second party—Mere lapse of time between the birth of a child and the death of the testator did not affect the presumption— Dobie's Trustee v. Pritchard, October 19, 1887, 15 R. 2, 25 S.L.R. 6; As Executor v. B, January 22, 1874, 11 S.L.R. 259. The terms of the assignation of 1894 showed that at that date the testator understood that he had made no provision for his wife, therefore no inference could be drawn from the circumstance that between the birth of his child in 1896 and his death he was silent as to a will which in 1894 he must have forgotten all about, or regarded as having no effect. The case of M'Kie, cit sup., governed the present case.

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