Scottish Court of Session Decisions

In October 1902 Mrs Jeanette Smith or Crow, widow and executrix-dative qua relict of the late David Crow, and David Smith Crow, the only child of the said

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David Crow, and Mrs Jeanette Smith or Crow as tutor and administrator-in-law to her said pupil child, raised an action against the trustees and executors acting under a trust-disposition and settlement executed by the said David Crow, dated 24th March 1900, with relative codicils, dated respectively 9th, 11th, and 13th July 1900, and 1st March 1902, and also against Mrs Alison Thomson or Cathro and others, the whole beneficiaries under the said trust-disposition and settlement and codicils. The action concluded for declarator (1) that the said trust-disposition and settlement and codicils had been revoked by the birth of the pursuer David Smith Crow on 31st March 1902, the marriage of the pursuer Mrs Jeanette Smith or Crow to the said deceased David Crow on 21st April 1902, and the consequent legitimation of the child David Smith Crow; and (2) that the whole means and estate, heritable and moveable, which belonged to the deceased David Crow at the time of his death now belonged to the pursuers for their respective rights and interests as his sole legal representatives ab intestato.

The only defender who lodged defences was Mrs Alison Thomson or Cathro, to whom a legacy of £800 and sundry small articles had been bequeathed by Mr Crow's trust settlement. She was a sister of Mr Crow's first wife, Mrs Elizabeth Thomson or Crow. Her defence was founded on the fact that Mr Crow had made the bequest to her in fulfilment of an undertaking to his first wife on her deathbed.

A proof was led.

The following statement of the facts is in substance taken from the opinion of the Lord Ordinary ( Stormonth darling):—Mr Crow died on 28th April 1902, leaving estate worth about £4000. He had been twice married. His first wife, Mrs Elizabeth Thomson or Crow, from whose will he derived the greater part of his property, died childless in March 1900. Shortly before her death she called him to her bedside and expressed regret that she had not been spared to go to her agent in Dundee and make some provision for her sister Mrs Cathro. He at once said ‘Dont let that trouble you, I will make that all right,” and knelt down and said he hoped he would have strength to go to Edinburgh to fulfil the promise he had made. On 24th March 1900 he executed the trust-disposition and settlement referred to in the summons, and he added codicils on 9th, 11th, and 13th July 1900, and 1st March 1902. By these he disposed of his whole estate, giving a legacy of £800 and a number of small articles to Mrs Cathro, other legacies to members of Mrs Cathro's family, to other persons, and the residue to three hospitals in Dundee. On two occasions Mr Crow called on Mrs Cathro and told her that he had looked after her in his will, and on the second of these, in April 1901, he mentioned that what he had left her would bring in about £30 a-year. On 31st March 1902 the pursuer, who had been for some time in attendance on Mr Crow as a professional nurse, bore a child in his house. He admitted the paternity of the child. He married the pursuer by declaration before witnesses on 21st April and on 22nd April the marriage was registered on a warrant by one of the Sheriff-Substitutes of the county of Forfar. On 28th April Mr Crow died of apoplexy. On 1st April he had called on a law-agent and talked of getting him to make alterations on his settlement, but nothing further had been done.

On 18th February 1903 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor;—“Finds and declares that the trust-disposition and settlement and codicils of the deceased David Crow mentioned in the summons have been rendered inoperative by the birth of the pursuer David Smith Crow on 31st March 1902, the marriage of the pursuer Mrs Jeanette Smith or Crow to the said deceased David Crow on 21st April 1902, and the consequent legitimation of the said David Smith Crow, except as regards the bequests contained in the said trust-disposition and settlement and codicils in favour of the compearing defender Mrs Alison Thomson or Cathro: Finds it unnecessary to deal with the remaining declaratory conclusions of the summons, and decerns,” &c.

Opinion.—“According to the law of Scotland the question whether the testament of a person is revoked by the subsequent birth of a child is one wholly dependent ‘upon the circumstances of the case.’ So said Lord Watson in Hughes v. Edwards, L.R. (1892) at p. 591, and this statement of the law has been adopted and acted upon by the First Division in Millar's Trustees, 20 R. 1040, and Stuart Gordon, 1 F. 1105

[ His Lordship then stated the facts ut supra.]

“In these circumstances it cannot be maintained that the will is to stand in its entirety. Indeed, the action is not defended by the residuary legatees or by any beneficiary except Mrs Cathro. Not only the birth of the child but the marriage were subsequent to its date. Accordingly there was no provision for the child either in the will itself or in any other instrument. And it disposed of Mr Crow's whole estate.

But there remains the question whether the will, though rendered inoperative by presumption of law as regards its main provisions, may not be held good as regards a special legacy in the very peculiar circumstances of this case. I am alive to the difficulty of holding that a testament shall be accepted in part as expressing the will of the testator at the moment of his death, and rejected as regards all the rest. Every case on this branch of the law, so far as I know, has either held the will good altogether or bad altogether. But there has been no case at all resembling the present, and where a rule of law so far departs from ordinary and established principle as to disregard the regular expression of a man's last will, merely on a presumption of its own that he cannot be held to have continued to mean what he had left as the only record of his meaning, I confess I see no anomaly in inquiring whether the presumption is necessarily destructive of the whole

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instrument. I agree that no court of law can attempt to make a will for a testator merely on its own view of what would have been just for him to provide. But where he has made his own will, and the question arises whether, owing to a material alteration of circumstances, it is still to receive effect, a court is bound, I think, to take a complete survey of the situation, to consider every clause in the will, and every relevant circumstance connected with the testator, in order to discover, first, whether the will is to stand as a whole, and if not, whether there is any separable part of it to which the legal presumption is inapplicable. All the cases in which the legal presumption has been held to have been overcome—from Yule v. Yule in 1758 (M. 6400) down to such recent cases as Adamson's Trustees, 18 R. 1133, and the two cases of Millar and Stuart Gordon, supra cit.—while differing widely in their circumstances from the present case, have yet had one feature in common with it. They have, it is true, proceeded on the view, either that the testator when he made his will had the possibility of a child being born in contemplation, or that after the birth of the child he deliberately forbore to alter his will. But in every one of them this conclusion has been rendered possible by the particular disposition of his affairs which was in question being of such a nature as to be quite consistent with his natural obligation to make suitable provision for his child.

Now, in the view which I take of this case, it is not possible consistently with the authorities to hold that the testator desired the will to stand as regulating the distribution of his whole estate. When he made it he had no expectation of a child. The evidence is that he did not know it was coming, and after the birth, or rather after the subsequent marriage, the time was too short to allow of any conclusive inference being drawn from his omission to alter. It may be unreasonable to suppose that he desired charities and strangers, who had no special claim on him, to oust his own child, even a child born under the exceptional circumstances in which this child was born. But these considerations seem to me entirely inapplicable to the special legacy in favour of Mrs Cathro. I cannot believe that if Mr Crow had been making a new settlement he would have desired for a moment to break the solemn promise which he had made to his first wife on her deathbed, particularly as it was to her affection and trust in him that he owed nearly all that he had. I am surprised that the pursuer has not voluntarily conceded Mrs Cathro's legacy, if only in justice to her husband's memory. But since it is left to the law to settle what right feeling ought to have determined for itself, I am bound to say that I know of no reason why a Court, in weighing (as in this matter it must weigh) the motives and intentions of a dead man, should assume that at the close of his life he would act otherwise than tanquam bonus vir. And if Mr Crow is to be credited with the most ordinary notions of honour and good faith, I cannot doubt that he would have left this one legacy standing, child or no child. His obligation to keep his promise to his dying wife lost none of its force by the mere fact of his having a child by another woman. This legacy seems therefore to stand entirely by itself. The other legacies to members of Mrs Cathro's family, and to other relations of his first wife, were no doubt given from a sense that it was just and right so to leave them, and I own to some regret that these also cannot be enforced. But the deathbed promise applied to Mrs Cathro's legacy alone, and it is this circumstance, more than the obvious equity of the bequest itself, and far more than the testator's own assurances given to the defender personally, that leads me to the conclusion that this legacy ought to be treated differently from all the others. In short, I regard the case as entirely exceptional.

I shall find and declare that the trust-disposition and settlement and codicils of the deceased David Crow, mentioned in the summons, have been rendered inoperative by the birth of the pursuer David Smith Crow on 31st March 1902, the marriage of the pursuer Mrs Jeanette Smith or Crow to the said deceased David Crow on 21st April 1902, and the consequent legitimation of the said David Smith Crow, except as regards the bequests contained in the said trust deed and codicils in favour of the compearing defender Mrs Alison Thomson or Cathro, and I shall find the said defender entitled to expenses.”

The pursuers reclaimed, and argued—The birth and legitimation of the child had the effect of revoking the will intoto. In the cases where the presumption in favour of revocation had been held to apply the settlement had been annulled as a whole— M'Kie's Tutor v. M'Kie, February 16, 1897, 24 R. 526, 34 S.L.R. 399; Rankin v. Rankin's Tutor, July 9, 1902, 4 F. 979, 39 S.L.R. 753. The judgment of the Lord Ordinary annulling part of the will and upholding part had no authority to support it. The proof showed that the testator had the alteration of his will in contemplation, and there were no facts and circumstances indicating that his intention was that the will should take effect either in whole or in part.

Argued for the defender and respondent—The Lord Ordinary's judgment was sound. Whether the conditio si testator sine liberis decesserit revoked a bequest was wholly dependent on the circumstances of the case—opinion of Lord Watson in Hughes v. Edwardes, July 25, 1892, 19 R. (H.L.) at p. 35, 29 S.L.R. at p. 912 sub fin. The presumption of the revocation of the bequest by the birth of the child was an equitable presumption. It should therefore yield to equitable considerations. All these considerations pointed to this bequest standing. The husband's property had come from the first wife, and it was just that he should give part of it to his first wife's sister. Mr Crow had solemnly promised his first wife on deathbed that he would provide for the defender, and the property was left to him on the faith of

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that promise. It was thus in effect a case of trust which he was bound to carry out, as he did by this bequest— Jones v. Budley, 1868, L.R., 3 Ch. Ap., opinion of Lord Chancellor Cairns, p. 363, foot of page; M'Cormick v. Grogan, 1869, L.R., 4 Eng. and Irish Ap., opinions of Lord Chancellor Hatherley at p. 88, and of Lord Westbury at p. 97. In these circumstances the Court should uphold the bequest.