Scottish Court of Session Decisions

Charles Robert Brodie, executor of the deceased Mrs Margaret Eeles or Sandilands or Lawrie, under her holograph settlement dated 10th March and recorded 14th October 1911, first party; Sarah Weatherhead Haig and her two sisters, executrices and universal legatees of their mother Mrs Mary Eeles or Haig, second parties; and Mrs Elizabeth Eeles or Brodie, third party, presented a Special Case dealing with difficulties arising out of the testamentary writings of the deceased Mrs Margaret Eeles or Sandilands or Lawrie, the first party being entitled to certain heritable property under her holograph settlement, and the deceased Mrs Mary Eeles or Haig and the third party being entitled to the fee of the same property under a destination in a mutual disposition and settlement by her and her husband Alexander Sandilands, butcher, North Berwick, dated 6th June 1874 and recorded 20th September 1876.

The Case stated—“1. The late Alexander Sandilands, butcher, North Berwick, and his wife, the late Mrs Margaret Eeles or Sandilands, afterwards Lawrie, executed a mortis causa mutual disposition and settlement of their respective estates and effects, dated 6th June 1874.… By the said mutual disposition and settlement each of the spouses conveyed to the other, in the event of his or her survivance (with the exception of certain heritable subjects belonging to the wife which had been purchased for £400, and which were specially dealt with as hereinafter mentioned), his or her whole estate, heritable and moveable, under burden of payment of the whole capital value thereof, to the beneficiaries and in the proportions therein named upon the death of the last survivor. It was provided … that the surviving spouse should have the full liferent use and enjoyment of the whole estate and effects, heritable and moveable, of the predeceasing spouse.”

The mutual disposition and settlement, which, mutatis mutandis, was in the same terms of the wife as of the husband excepting the said heritable property, which consisted of 45 and 47 High Street, North Berwick, contained these clauses—“I, the said Margaret Eeles or Sandilands, do hereby, give, grant, dispone, assign, and convey to and in favour of the said Alexander Sandilands, my husband, in case he survive me, in liferent, but for his liferent use only, and of the said Mary Eeles or Haig, and Elizabeth Eeles [ two of the three residuary legatees of the husband as also of the wife] daughters of the said late George Eeles, butcher, North Berwick, and their respective heirs and assignees whomsoever in fee,” the said heritable subjects; and “We, the said Alexander Sandilands and Margaret Eeles or Sandilands, reserve full power in our joint lifetimes, and of mutual assent and consent, but not otherwise, to alter or revoke these presents, but we severally and jointly expressly declare that, if not altered of joint consent, the same shall be final and conclusive on both of us, but reserving to the last survivor of us to dispone all his or her own means and estate to be made and acquired after the decease of the first of us, and power of disposal thereof as he or she think fit.”

The Case further stated—“2. The said Alexander Sandilands died at North Berwick on 12th September 1876, survived by his said wife. He was not possessed of any heritable property at the time of his death, but he left moveable estate valued, for confirmation, at the sum of £433, 9s. 6d., which estate his widow confirmed to and ingathered. She thereafter, in terms of the said mutual disposition and settlement, enjoyed for the rest of her life (a period of thirty-five years) the full liferent use and enjoyment of the said estate left by her husband the said Alexander Sandilands. At the date of her death it was found that the whole moveable estate left by her (including the moveable estate of her said deceased husband) did not exceed £55 stg., and that the only heritable property left by her was the above-mentioned heritable subjects, which, along with a sum of money not exceeding £400 stg., was the whole estate which belonged to the said Mrs Sandilands at the death of her husband the said Alexander Sandilands. The said Mrs Margaret Eeles or Sandilands afterwards married James Lawrie, butcher, North Berwick. She survived her husband, the said James Lawrie, and died at North Berwick on 6th October 1911.…

“4. The said Mrs Margaret Eeles or Sandilands was the natural daughter of the said George Eeles, and the fiars called in the destination above quoted were his daughters. The said fiars were not related to the said Alexander Sandilands, but were on terms of personal friendship with him and his wife throughout his lifetime. The first named of the fiars called in the said destination, viz., Mrs Mary Eeles or Haig, died on 25th September 1908. She was predeceased by her husband, but is survived by her three daughters, Sarah Weather-head Haig, Mary Eeles Haig, and Elizabeth Eeles Haig, the parties of the second part, who are her executors and universal legatees and disponees. The second named of the said fiars is now the widow of James Brodie, baker in North Berwick, and is the party of the third part.

“5. By a holograph settlement, dated 10th March 1911, and registered in the Books of Council and Session 14th October 1911, the said Mrs Margaret Eeles or Sandilands or Lawrie provided as follows, viz.—‘( Second) I give and bequeath my heritable property (which is absolutely mine), No. 45 and 47 High Street, North Berwick, to Charles Robert Brodie, 24 Bruntsfield Gardens, Edinburgh, for the love I have for him.

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I hereby revoke all writings of a testamentary nature made by me prior to the date hereof.’”

The following questions of law were submitted—“1. Was Mrs Margaret Eeles or Sandilands entitled after the death of her husband, the said Alexander Sandilands, to alter or revoke the destination of the heritable subjects, Nos. 45 and 47 High Street, North Berwick, contained in the mutual disposition and settlement executed by her and her said husband on 6th June 1874; and was the alteration and revocation thereof contained in her holograph settlement of 10th March 1911 effectual? or, 2. Does the destination of the said heritable subjects still fall to be regulated by the provisions of the said mutual disposition and settlement?”

Argued for the first party—Apart from specialties, the general rule was that mutual wills were just two wills contained in one document. Even in the case of a mutual will made by a husband and wife provisions in favour of persons other than the spouses and the children of the marriage were, just as in marriage contracts, presumed to be testamentary— United Free Church of Scotland v. Black, 1909 S.C. 25, 46 S.L.R. 87 ( sub voce Crawford's Trustees). No doubt a clause of revocation might be expressed in such terms as to show clearly that the provisions of the will were intended to be binding on the survivor even quoad his own estate, but the language used would need to be so plain that no other interpretation was possible— Robertson's Trustees v. Bond's Trustees, June 28, 1900, 2 F. 1097, 37 S.L.R. 833. The expression of a limited power to revoke, however, did not exclude the presumption of revocability— Corrance's Trustees v. Glen, March 20, 1903, 5 F. 777, 40 S.L.R. 526. The concluding words of the clause of revocation in the present case, reserving to the last survivor power to dispone of property acquired after the death of the predeceaser were merely words of style.

Argued for the second and third parties—Although the presumption was that provisions in mutual wills in favour of strangers were merely testamentary, that presumption was rebutted by the terms of this will. Corrance's Trustees (cit. sup.) was an example of provisions in favour of collateral relatives which were held to be contractual. In the present case the ultimate beneficiaries were blood relations of the wife and also close friends of both spouses. Power to revoke was expressly limited by language of striking stringency, and there was no case where a clause so clear in its terms had been held compatible with revocability. There was here fair equality between the provisions made by either spouses in favour of the other. The contract was therefore remuneratory, and the wife having taken benefit under it was not entitled to will away her property in breach of its terms— Robertson's Trustee v. Bond's Trustees (cit. sup.).