Scottish Court of Session Decisions

Robert Knox, thread manufacturer, Moorpark, Kilbirnie, Ayrshire, died on June 19 1905, survived by his widow Mrs Jessie Fulton or Knox and by three children, William, born 9th April 1888, Anne Montgomerie, born 28th June 1891, Barbara Jean, born 22nd July 1897, and leaving a trust-disposition and settlement dated January 14, 1896, which was recorded in the Books of Council and Session August 16, 1905. By it he conveyed his whole means and estate both heritable and moveable to Mrs Knox, his widow, and others as trustees, and appointed them his executors and tutors and curators to such of the beneficiaries as might be in pupillarity or minority at the date of his death.

On 27th September 1906 a special case was presented, the parties to which were (1) the trustees acting under the said trust-disposition and settlement, (2) William Knox and Anne Montgomerie Knox, the two elder children being minors and having the consent of the trustees as their curators, (3) Mrs Knox the testator's widow, as guardian of their pupil and only other child Barbara Jean Knox, and (4) Mrs Knox as an individual. The matters dealt with were (1) whether the trust-disposition was operative or had become inoperative owing to the birth of the child Barbara Jean subsequent to its execution, and (2) whether, supposing the conditio si testator sine liberis decesserit to apply, the administrative clauses of the trust-disposition did not hold good.

Mr Knox had had no marriage-contract, had not been previously married, and had had no child who had predeceased him. His estate consisted of moveable estate, net £274,650, 13s. 1d., and of heritable estate, still subject to estate duty, £32,540. The purposes of the trust-disposition were shortly—(1) payment of debts, funeral expenses, &c., and the expenses of executing the trust; (2) payment of a legacy of £2500 to the fourth party as soon as convenient after the testator's decease; (3) a liferent to the fourth party of the household furniture and plenishing at the testator's residence of Moorpark; (4) payment of an annuity to the fourth party of £1800, and a certain allowance for the maintenance of each of the testator's children William and Anne Montgomerie Knox (the second parties) so long as they continued to live in family with her, until they respectively reached 21 years of age; (5) a liferent to the fourth party of the mansion-house of Moorpark with certain lands adjoining; (6) the expenditure of such sums as might be necessary for the suitable education of the second parties; (7) conveyance to his son William, on the expiry of the fourth party's liferent, of the household furniture and plenishing liferented by her; (8) conveyance to his son William, on his attaining 21 years of age, of certain lands and farms in the parish of Kilbirnie and certain other properties in the town of Kilbirnie, and also, on the death of the fourth party, of the mansionhouse of Moorpark and adjoining lands of which the testator had given the liferent to her, and it was declared that in the event of the testator's said son dying before attaining 21 years of age, the whole heritable properties directed to be conveyed to him should form part of the residuary estate; (9) conveyance to the testator's daughter Anne Montgomerie Knox, on attaining 21 years of age, of certain lands in the parishes of Lochwinnoch and Dalry and dwelling-house in the parish of Kilbirnie, as to which it was also declared that, in the event of his said daughter dying before attaining 21 years of age, these properties should form part of the testator's residuary estate; (10) subject to providing for the annuity to his widow, and upon the youngest of his said children attaining 21 years of age, for division of the residue of the testator's means and estate, heritable and moveable, into three parts or shares, two of these parts or shares being bequeathed to his son William and his heirs, and the other part or share to his daughter Anne and her heirs.

The facts were stated in the case as follows—“No provision is made for any child or children of the testator other than his two children who existed at the date of the said trust-disposition and settlement, viz., William and Anne, the second parties hereto. His other child Barbara, who by her legal guardian is the third party to the case, was not born until 22nd July 1897, eighteen months after the date of the said trust-disposition and settlement. The said trust-disposition and settlement … was prepared by the firm of Fulton & Kirkhope, Writers, Dalry, of which Mr Robert Fulton, one of the parties of the first part and a brother-in-law of the testator, was then a partner, and was executed by the testator at Dairy on 14th January 1896 as aforesaid. The testator furnished the said Fulton & Kirkhope with certain jottings in his own handwriting for the preparation of the said trust-disposition and settlement. … The said trust-disposition and settlement after its execution was retained by Messrs Fulton & Kirkhope until 16th September 1904, on which date it was sent by Robert Fulton to the testator at his verbal request. … In the year 1894 Messrs Love & Williamson, Writers, Beith, who for many years prior to the death of the testator acted generally as his legal advisers, received instructions from the testator to prepare a trust-disposition and settlement

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for him. A draft trust-disposition and settlement was thereupon prepared by Messrs Love & Williamson and sent by Mr Walter Williamson, a member of the firm, to the testator on 24th May 1894 under a covering letter in these terms—‘I beg to enclose draft of settlement for your consideration.’ This draft was never completed. It was retained by the testator, who had casual and occasional conversations with his said legal advisers regarding its terms, but he never finally approved of the draft. On 4th February 1901 the testator called on Mr Williamson and gave instructions for the preparation of a fresh draft, and two days later he returned the said draft trust-disposition and settlement of 1894 to the said firm by letter in the following terms—“Moorpark, Kilbirnie, Ayrshire, 6th February 1901.—Dear Mr Williamson — I enclose draft trust-disposition, dated 1894, which please go over and alter on the lines spoken of on 4th curt., or draft a new one if needed. Should you want more details than spoken of I will call. Acknowledge receipt and oblige, yours truly, R. W. Knox. Walter Williamson, Esq., Beith.’ In compliance with the directions contained in the said letter, Messrs Love & Williamson re-drafted the trust-disposition and settlement of 1894, and upon 28th March 1901 they sent a new draft trust-disposition and settlement to the testator under a covering letter in these terms—

Beith, March 28th, 1901.

Dear Sir,—As recently instructed, we enclose draft of trust-disposition and settlement for your consideration. The purposes as expressed will probably not give effect to what you decide on doing, but may afford assistance in coming to a conclusion.—We are, yours faithfully, Love & Williamson. R. W. Knox, Esq., of Moorpark, Kilbirnie.’ … The said draft trust-disposition and settlement of 1901 purported to convey the testator's whole means and estate, both heritable and moveable, to trustees, whom he appointed his executors and tutors and curators to such of his children as might be in pupillarity or minority at the time of his death. The trust purposes expressed therein are—(1) payment of debts, funeral expenses, &c., and the expenses of executing the trust; (2) a liferent to the testator's said widow of the mansion-house of Moorpark, with certain lands adjoining; (3) delivery to the testator's said widow, as her absolute property, of the household furniture and effects in said mansion-house, and also the testator's horses, carriages, &c.; (4) payment to the testator's said widow of an annuity of £, subject, the said provisions to his widow, to the maintenance, clothing, and education by her of ‘our children remaining in family with her on payment by my trustees to her of a yearly sum in respect thereof;’ (5) conveyance to ‘my only or eldest surviving son’ of all the testator's lands and heritages on his attaining twenty-one years of age, under exception, in the event of the testator's said widow surviving him, of the dwelling-house of Hillhead, Kilbirnie, and its offices, but subject to the liferent of the parts of said lands provided to the testator's said widow, and to the real lien and burden of the sum of £ per annum, ‘being the proportion of said annuity of £, which is hereby allocated by me upon the said lands and others directed to be conveyed to such son;’ (6) conveyance of the said house of Hillhead and its offices to ‘such one or more of our children as my said wife may direct by any writing under her hand,’ and in the event of no such writing, then to the testator's eldest son; (7) ‘to my children other than my son, who shall become entitled to my lands and heritages under the fifth purpose of the trust above written legacies of the following amounts, viz., if only one other such child, the sum of £, if two other such children, the sum of £ equally between them, and if three or more other such children the sum of £ equally among them, payable the said legacy or legacies at the first term of Whitsunday or Martinmas after the legatee or respective legatees, as the case may be, shall have attained twenty-one years of age, but declaring that if any of the legatees predecease the term of payment leaving lawful issue, such issue shall be entitled equally among them to the legacies their parents would have received had they survived such term;’ (8) to set aside, after the testator's eldest son attains twenty-one years of age, a capital sum to meet the annuity given to the testator's widow; (lastly) to hold the residue of the testator's means and estate for behoof of the whole of his children in such proportions and on such conditions as he might direct by any writing under his hand, and ‘failing any such writing, then to and for behoof of the whole of my said children in the proportions of one equal share to each son, and one-half of an equal share to each daughter, that is to say, for each £2 or proportion thereof that each son shall receive each daughter shall receive £1 or proportion thereof, payable the said shares to them on their respectively attaining to the years of majority.’

The said draft trust-disposition and settlement of 1901 was never completed. During the years from 1901 until his death the testator was closely engaged in the affairs of the Linen Thread Company, Limited, of which he was chairman. He was frequently away from home on business, and no further steps were taken in connection with this draft trust-disposition and settlement, which was meantime retained by him until the 21st October 1904, when the testator had a meeting with Mr Williamson, and instructed him to consider the draft of 1901, which he then left with Mr Williamson, and to write him with suggestions upon it. Upon 24th October 1904 Mr Williamson returned the draft of 1901 to the testator with a letter in the following terms:—

Beith, 24th October, 1904.

Dear Mr Knox,—I return the draft will received from you last week. In view of what was said in conversation the following suggestions are offered:—

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1. Let the first, second, and third purposes stand, as on pages 4 and 5.

2. Substitute for the fourth purpose (beginning at foot of page 5) a capital sum of substantial amount in place of the annuity.

3. Let the fifth and sixth purposes stand, omitting from the first of them reference to annuity.

4. Let the seventh purpose also stand. To obtain a measure of equality among children (as far as this point of the will) the sums to be filled in would be arrived at on the basis of an estimate of what is given to son under the fifth purpose. This seems the main difficulty in carrying out the conception of the will. It can only be dealt with broadly because of the liferent of Moorpark, &c., created in favour of Mrs Knox. Look at it apart from the liferent. One can see that the value of the bequest of the mansionhouse, &c., must not be put at anything like cost or even sale value. The idea is that the legatee is to occupy, which means maintaining a considerable establishment. For that reason alone the figure of this item should be relatively moderate. I would not complicate the estimate by considering the effect of the liferent, for if Mrs Knox were the survivor she could out of the legacy to her remedy any inequality that might appear of such importance as to call for a remedy.

5. The eighth purpose would be unnecessary.

6. The last needs no remark.

I think the theory of the will as in draft is suitable and expresses arrangements suited to your family and circumstances. But the suggested changes would be of advantage, unless you thought also of an annuity to Mrs Knox in addition to her special legacy, on this ground that she would be maintaining Moorpark as a residence both for herself and the family. — Yours very truly, Walter Williamson.’ Nothing further is known to have been done by the testator in regard to this will.

Upon the death of the testator, which took place unexpectedly on 19th June 1905 after a short illness at the age of sixty, a search was made at Moorpark … for testamentary documents, with the result that in a drawer of the writing table in the morning room which the testator was in the constant habit of using there were found—(1) An envelope addressed in the handwriting of Mr Robert Fulton ‘R. W. Knox, Esq., Moorpark, Kilbirnie,’ and containing an endorsement in pencil by the testator himself ‘Trust-disposition and settlement, 1896.’ That document and the said covering letter from Mr Robert Fulton, dated 16th September 1904, were found in this envelope. (2) Another envelope addressed in the handwriting of Mr Williamson ‘Personal, R. W. Knox, Esq., of Moorpark, Kilbirnie,’ containing the said draft trust-disposition and settlement prepared by Messrs Love & Williamson in 1901, along with two letters, the one the said letter by that firm to the testator, quoted in article 4 hereof, sending him the draft and dated 28th March 1901, and the other the said letter from Mr Williamson to the testator, dated 24th October 1904. …

The jottings by Mr Knox, upon which the trust-disposition of 1896 had been prepared, contained the following as the eighth purpose of the proposed deed, the words in italics being deleted in pencil, the words in round brackets being in pencil, and the words in square brackets being interlineations:—“ Eighth.—(Residue)—To pay to [each of] my [each] son out of said my moneys [at the rate of] £2 and to my [each] daughter [at the rate of] £1 out of every £3 thereof [till finished on] at the completion of the 21st year of the youngest child I may leave but [and] my trustees may advance to any son or daughter any sum they think fit to begin business with, or as a marriage portion, or otherwise not exceeding £4000 & £2000 respectively.”

The question of law was—“Was the said trust-disposition and settlement of the said deceased Robert William Knox, dated 14th January 1896, revoked by the subsequent birth of his daughter the said Barbara Jean Knox, either ( a) in whole, including the appointment of trustees and executors and tutors and curators, or ( b) in so far only as it disposes of the testator's estate in favour of the beneficiaries therein named?”

The first and second parties argued — The testator's settlement of 1896 was not revoked by the birth of the third child subsequent to its date. The presumption in favour of revocation might be elided by facts and circumstances — Elder's Trustees v. Elder, March 16, 1894, 21 R. 704, 31 S.L.R. 594, v. opinions; Hughes v. Edwards, July 25, 1892, 19 R. (H.L.) 33, Lord Watson at p. 35, 29 S.L.R. 911. The question depended on the testator's intention and the state of his knowledge— Adamson's Trustees v. Adamson's Executors, July 14, 1891, 18 R. 1133, 28 S.L.R. 869; Millar's Trustees v. Millar, July 20, 1893, 20 R. 1040, Lord M'Laren at p. 1042, 30 S.L.R. 865; Stuart-Gordon v. Stuart-Gordon, June 27, 1899, 1 F. 1005, Lord M'Laren at p. 1011, 36 S.L.R. 779. The facts and circumstances necessary to elide the presumption were present in this case, viz. (1) lapse of time between the birth of the child and the testator's death— Colquhoun v. Campbell, June 5, 1829, 7 S. 709, Lord Pitmilly at p. 712; and (2) the existence of other children at the date of the settlement — Rankin v. Rankin's Tutor, July 9, 1902, 4 F. 979, Lord Young at p. 981, 39 S.L.R. 753. The testator had had the draft settlement of 1901 under consideration for years in full knowledge of the circumstances, and not having completed it he must, on the authorities cited above, be held to have preferred his settlement of 1896, which he had not destroyed. In preparing that settlement the jottings showed he had in contemplation possible additions to his family. If the settlement of 1896 was given effect to the division of the testator's estate would more closely approximate to his intention as expressed in the jottings used in 1896 and also in the draft

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will of 1901, viz., the son to have of residue twice a daughter's share, than if the succession became intestate when the shares of the son and each daughter would be equal. In Elder's Trustees v. Elder, ut supra, which case stood alone, the presumption was stronger, as the whole heritage went to the daughters if the conditio were not applied, the after-born son only getting a share of moveable estate very small in proportion. On the alternative in the question, if the presumption applied, it was only to the operative and not to the administrative clauses of the settlement, and those appointed to office thereunder should perform their assigned functions even if the estate were intestate— Elder's Trustees v. Elder, March 16, 1895, 22 R. 505, Lord M'Laren at p. 511, 32 S.L.R. 365. Crow v. Cathro, June 18, 1903, 5 F. 950, 40 S.L.R. 687, was so different in its circumstances as to be distinct. The true analogy was the law of deathbed, under which an heir could reduce a will in part. The question should be answered in the negative.

The third and fourth parties argued — The presumption applied, and the testator's settlement of 1896 being inoperative the estate fell into intestacy. It was immaterial whether there were children or not when the settlement was made — Elder's Trustees v. Elder, ut supra. There were no circumstances to elide the presumption. Lapse of time between the birth and the testator's death was immaterial— Dobie's Trustee v. Pritchard, October 19, 1887, 15 R. 2, Lord Rutherfurd Clark at p. 4, 25 S.L.R. 6. Further, it was to be noted that the settlement was universal, not partial, and in 1901 the testator showed it did not express his intentions by preparing to make a new one. In Adamson's Trustees v. Adamson's Executors, ut supra, the will was not universal, and was made in the knowledge that the testator's wife was pregnant. In Millar's Trustees v. Millar, ut supra, there was a sufficient provision for the after-born child in a marriage-contract, and in Stuart-Gordon v. Stuart-Gordon, both these elements were present, the testatrix having made an addendum to her settlement two months before the birth of her child. Thus these cases did not apply. The testator could have defeated the presumption by doing something after the birth of his third daughter to set up the settlement— Elder v. Elder's Trustees, ut sup., Lord Kinnear at p. 709; Rankine v. Rankine's Trustees, March 11, 1904, 6 F. 581, Lord Kinnear, at p. 584, 41 S.L.R. 479—but he had not done so. The question should be answered in the affirmative. Johnston v. Johnston, 1817, 1 Phill. 447, was also referred to for the English law upon the application of the presumption.