Scottish Court of Session Decisions

Mrs Margaret Mackie or Isbister, 705 Shields Road, Glasgow, widow of John Isbister of Pittsburg, U.S.A., died on 15th January 1903, having executed in January 1870 a disposition and settlement in the following terms:—“I, Mrs Margaret Mackie or Isbister, for the settlement of the succession to my means and estate after my decease, do hereby assign and dispone to my daughter Jessie Sarah Isbister and her heirs and assignees whomsoever absolutely all and sundry the whole means and estate presently belonging or which shall belong to me at my decease, and I nominate the said Jessie Sarah Isbister to be my sole executrix, but these presents are granted under burden of all my just and lawful debts and sick-bed and funeral charges; declaring also that the provision hereby made in favour of the said Jessie Sarah Isbister shall be exclusive always of the jus mariti, courtesy, curatory, and right of administration of any husband she may marry, and not affectable by the debts or deeds of such husband, nor by any action, diligence, or execution competent to follow thereupon; and I reserve my own liferent of the premises; and I dispense with the delivery hereof; and I consent to the registration hereof for preservation.” The greater part of the estate left by Mrs Isbister was heritable property in Glasgow.

Mrs Isbister's daughter Jessie Sarah Isbister, afterwards Mrs Brown, who was her only child, died on 14th March 1902, and so predeceased her mother. Mrs Brown left no issue.

In June 1903 the present action was raised by Mrs Elizabeth Mackie or Macleod, Myrton, Prestatyn, Flintshire, and another, two of Mrs Isbister's heirs ab intestata, against Mrs Sarah Agnes Isbister or Wilson, Millburn House, Claremont, near Cape Town, South Africa, and others, the heirs of Mrs Jessie Sarah Isbister or Brown. The pursuers sought to have it declared that the disposition and settlement referred to was of no force and effect, and that Mrs Isbister's estate had fallen into intestacy.

The defenders maintained that the disposition and settlement was effectual to carry Mrs Isbister's whole estate to them as conditional institutes.

The pursuers averred, inter alia, that before Mrs Brown's death Mrs Isbister had been certified as incapable of managing her affairs or of giving directions for the management of them, and that if she ever realised the fact of her daughter's death, she never was capable of comprehending the effect of the disposition which she had executed in 1870 or of giving instructions for the preparation of a new will.

The pursuers pleaded—“(1) The pursuers are entitled to decree of declarator as concluded fur, in respect (1st) that the said settlement was only to take effect in the event ( a) of Mrs Brown's surviving her mother, or ( b) of her predeceasing her mother leaving issue. (2) That Mrs Isbister being her daughter's heir quoad one-third of her daughter's moveable estate cannot be presumed to have intended to institute herself as heir to her own succession. (3) that it having been Mrs Isbister's desire to benefit only her daughter or daughter's issue, she was mentally incapable after her daughter's death of destroying the said settlement or of making a new one.”

The defenders pleaded—“(1) The action as laid is incompetent. (2) No relevant case. (3) The disposition and settlement being the valid deed of Mrs Isbister, and entitled to receive full force and effect, the defenders should be assoilzied. (4) The destination to Mrs Brown's heirs in said disposition and settlement being a proper conditional institution of her heirs in the event of her predeceasing Mrs Isbister, the defenders should be assoilzied. (5) The material averments of the pursuers being unfounded in fact, the defenders should be assoilzied.”

By interlocutor of 19th July 1903 the Lord Ordinary (Low) sustained the second plea-in-law for the defenders and dismissed the action.

“ Opinion.—This case has been argued very ably by Mr Macfarlane and Mr Graham Stewart. They have said everything that can be said for the pursuers, and therefore I have the more confidence in expressing the opinion which I have formed.

The question is whether the writing which the late Mrs Isbister left purporting to regulate the disposal of her estate at her death was a will or a bond of provision. The document bears to be a settlement, because the cause of granting is stated to be for ‘the settlement of the succession of my means and estate after my death.’ That is clearly a testamentary purpose. Then the terms used are unambiguous. Mrs Isbister dispones her whole means and estate to her daughter ‘and her heirs and assignees whomsoever.’ The meaning of such a destination is very well settled. The case of Bowman's Trustees is an authority for saying that a destination-over to heirs is just as much a conditional institutional as if it were to a third party nominatim, and there is nothing in this instrument to justify the words being read in any other sense. Now, what grounds are there for treating this instrument, which bears to be a testamentary settlement, as being merely a bond of provision in favour of the daughter? I think there are only two grounds, in so far as the answer to this question depends, upon the terms of the instrument. The one is that the daughter is nominated as sole executor, and the other is that the disposition in her favour is spoken of as a ‘provision.’

In regard to the nomination of the daughter as the executor it was argued

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that if Mrs Isbister had intended that the disposition should take effect, even if her daughter predeceased her, she would have nominated an executor to act in that event. Very likely Mrs Isbister did not think of her daughter predeceasing her, but however that may be, if an executor, failing the daughter, had been nominated, it would have required to be a person who had no interest in the succession, because those to whom the estate was destined, failing the daughter, could not be known, and, indeed, did not exist, at the date of the settlement. I think that that sufficiently explains the nomination of the daughter only.

In regard to the use of the word ‘provision’ it occurs in this way. It is declared that ‘the provision hereby made shall be exclusive of the jus mariti, courtesy, and right of administration of any husband she may marry.’ Now, the word ‘provision’ just refers back to what had been given to the daughter in the preceding part of the deed, that is, an absolute conveyance of the whole estate. I think that the use of the word ‘provision’ is very naturally explained by the relationship which existed between the parties—the relationship of mother and daughter—because I think it is a matter of everyday experience to find that legacies or gifts by a parent to a child are spoken of as provisions. It therefore seems to me that the mere use of the word ‘provision’ in the clause which I have quoted is altogether insufficient to reduce what bears to be, and in form is, a testamentary settlement to a bond of provision.

It was further argued that as Mrs Isbister was in fact one of her daughter's heirs it could not be supposed that she intended to make a will in her own favour as conditional institute. But the fact that, as the event turned out, Mrs Isbister happened to be one of her daughter's heirs was a mere accident. If the daughter had survived her mother, or if she had left children, the mother would not have been one of her heirs. It seems to me that the unforeseen, and, I imagine, unlikely event of the daughter predeceasing her mother without issue cannot prevent the writing being construed according to the ordinary significance of the language used. The result of Mrs Isbister turning out to be one of her daughter's heirs seems to me simply to be that to the extent of one-third of the estate the settlement has proved to be ineffectual.

Mr Macfarlane further argued that the word ‘heirs’ should be read as meaning heirs of the body. In some cases the word has been so read, but that was where the context showed that the testator in speaking of heirs in one part of the deed really referred to heirs of the body. In this deed, however, there is nothing to suggest that the word is used otherwise than in the ordinary sense.

I shall therefore dismiss the action.”

The pursuers reclaimed, and argued—Mrs Isbister did not intend to benefit anyone except her daughter, and the benefit conferred upon her daughter was expressly described as a “provision.” The deed was intended to take effect only in the event of the granter's daughter surviving her or leaving issue if she predeceased her— Findlay v. Mackenzie, July 9, 1875, 2 R. 909, 12 S.L.R. 597; Baillie's Executor v. Baillie, June 16, 1899, 1 F. 974, 36 S.L.R. 739. Mrs Isbister was herself one of her daughter's heirs; therefore even if the deed was a mortis causa settlement it was ineffectual— Birnie v. Simpson's Trustees, November 29, 1892, 20 R. 481, 30 S.L.R. 259. The words “heirs and assignees whomsoever absolutely” merely marked Mrs Isbister's indifference as to what became of her estate if her daughter did not survive her or leave issue; “heirs” meant “heirs of the body”— Craw's Trustees v. Craw, February 15, 1899, 1 F. 572, 36 S.L.R. 414. The word “assignees” would be meaningless except in the view that the deed was only to take effect if Mrs Brown survived, because unless she survived there could be no assignation of her rights— Thompson's Trustees v. Jamieson, January 26, 1900, 2 F. 470, 37 S.L.R. 346.

Argued for the respondents—Mrs Brown's heirs were conditional institutes, and they were to be sought for as at the date of Mrs Isbister's death— Maxwell v. Maxwell, December 24, 1864, 3 Macph. 318; Halliburton, &c., June 26, 1884, 11 R. 979, 21 S.L.R. 686; Cleland v. Allan, January 13, 1891, 18 R. 377, 28 S.L.R. 264. The language of the deed was testamentary, and it was a will.