Scottish Court of Session Decisions

James Guthrie Shiell and another, testamentary trustees of the late Mrs Elizabeth Mackie, pursuers and real raisers, brought an action of multiplepoinding and exoneration for the purpose of determining whether a mutual codicil, dated 6th November 1879, executed by Mrs Mackie and her husband to an onerous and contractual mutual settlement, dated 28th June 1855, between them and Mrs Mackie's father, had been revoked by a subsequent trust-disposition and settlement, dated 25th June 1881, and codicils executed by Mrs Mackie after the death of her husband. Claims were lodged by Miss Jessie Bruce Mackie and others, claimants, who were beneficiaries mentioned in the mutual codicil, or their representatives, and by Mrs Menzies and others, claimants, beneficiaries under Mrs Mackie's subsequent trust-disposition and settlement and relative. codicils.

The mutual codicil, the legal effect of which was in dispute, was in the following terms:—“I, Dr Archibald Mackie and Mrs Elizabeth Todd or Mackie, spouses within designed, have resolved, with mutual advice

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and consent, to make the following alteration on and addition to the within deed. Without prejudice to the said Elizabeth Todd or Mackie's power and rights under said deed, should she be the survivor, and reserving her full interest, we hereby direct and appoint that in so far as the funds falling under the same may remain at her death, after meeting all claims and liabilities, the free residue remaining at that date shall be apportioned and divided as follows, viz.—Three-tenths to Andrew Wallace Mackie and Jessie Bruce Mackie, children of the late Dr Andrew Mackie, or their heirs; four-tenths to Dr James William Reid Mackie of Cupar, whom failing to his children equally or their heirs; and the remaining three-tenths shall be at the disposal by will or otherwise of me, the said Elizabeth Todd or Mackie: Declaring that it shall not be in the power of any of the said legatees to interfere with the management of the funds or estate or their investment during the survivance of the said Mrs Elizabeth Todd or Mackie, or her control or use of the same, under which alteration and addition the foregoing will is hereby confirmed.”

The facts of the Case appear from the opinion of the Lord Ordinary ( Skerrington), who on 12th December 1912 found “that on a sound construction of the deed of revocation and disposition and settlement and relative codicil by Dr and Mrs Mackie, Mrs Mackie had power to dispose as she thought fit of the whole estate which belonged to her at the time of her death, and that her testamentary writings must receive effect according to their terms.”

Opinion.—The fund in medio consists of the estate and effects, amounting to about £37,000, which belonged to the late Mrs Mackie, who died on 24th April 1911. Upon the death of her husband Dr Mackie, on 11th December 1879, she succeeded to his whole estate, amounting to about £21,000. The question which I have to decide is whether Mrs Mackie had full testamentary power to dispose of the whole estate of which she died possessed as she chose, or whether a writing which she and her husband had executed on 6th November 1879, about five weeks before his death, compelled her to allow certain of his relations to succeed upon her death to seven-tenths of the whole or of some part of her estate. The writing in question was in the form of a codicil to a mutual will which Dr and Mrs Mackie had executed in the year 1855. This mutual will purported to revoke their antenuptial contract of marriage, dated 26th August 1848. There were no children of the marriage.

It appears from the antenuptial contract of marriage that at its date in 1848 neither Dr Mackie nor Mrs Mackie had any estate to put into settlement, but her father Mr Todd was a party to the contract and bound himself on his death to pay £1500 to the spouses or the survivor of them. Mrs Mackie assigned to trustees any further estate to which she might succeed by or through the death of her father. An alimentary liferent of the trust estate was settled upon the spouses and the survivor of them, and failing children, the capital of the trust estate was on the death of the survivor of the spouses to return to the heirs of the settlor, namely, certain nephews and nieces of Mr Todd. By the marriage contract Dr Mackie renounced his jus mariti as regards the portion of Mr Todd's succession which might accrue to his wife, and he further bound himself to insure his life in her favour for a sum of £1000. No children having been borne of the marriage, and Mr Todd having altered his testamentary arrangement, Dr and Mrs Mackie along with Mr Todd executed on 28th June 1855 a deed of revocation and disposition and settlement which purported to revoke the marriage contract. The intention of the parties seems to have been that Mrs Mackie's prospective share of her father's estate should be handed over absolutely to Dr Mackie on the death of Mr Todd. The parties expressly revoked and recalled the renunciation contained in the contract of marriage of Dr Mackie's jus mariti so far as concerned his wife's succession to her father. After revoking clause by clause the provisions of the marriage contract, the deed contains a disposition and settlement, or, as I prefer to call it, a mutual will of a very simple kind. Dr and Mrs Mackie disponed and assigned to the survivor of them the whole estate which should belong to the predeceaser at the time of his or her death. The parties are agreed that this deed was highly onerous, seeing that it came in place of the marriage contract and partook of its onerosity— Croll's Trustees v. Alexander, 1895, 22 R. 677. It contains a clause reserving full power and liberty to the spouses with the consent of each other to alter and revoke. In pursuance of this reserved power Dr and Mrs Mackie executed on 6th November 1879 a codicil, the legal effect and construction of which are in dispute. The codicil is a short one, but instead of quoting it I shall state what I understand to be its meaning and effect.

(1) It is expressly stated both at the beginning and at the end that the parties had resolved to make an alteration on and addition to the mutual will, subject to which they confirmed the will.

(2) Though it is not said in so many words, it is clearly implied that the codicil was intended to take effect only in the event of Mrs Mackie surviving her husband. It is apparent that the spouses signed this codicil in contemplation of the death of Dr Mackie, which occurred not long afterwards.

(3) The codicil purports to regulate the succession of Mrs Mackie's estate after her death by directing that seven-tenths of the funds falling under the mutual will are, so far as remaining at her death, to be divided among certain of Dr Mackie's relatives in the proportions therein set forth. It was declared that the remaining three-tenths should be at the disposal by will or otherwise of Mrs Mackie.

(4) The codicil did not alter the scheme of the will which made Mrs Mackie the full fiar of her husband's estate in the event of

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her surviving him. It merely regulated the succession to a part of her estate upon her death.

(5) The codicil contained a clause to the effect that it should not be in the power of any of the legatees to interfere with the management or investment of the estate during Mrs Mackie's survivance or with her control or use thereof.

(6) The codicil bears to be ‘without prejudice to the said Elizabeth Todd or Mackie's power and rights under said deed should she be the survivor, and reserving her full interest.’

By her testamentary writings, to which it is unnecessary to refer in detail, Mrs Mackie innovated to some extent upon the terms of this codicil. The first of these writings was dated in 1881, within two years of her husband's death, and it shows that according to her understanding she was entitled to make such testamentary dispositions as she thought fit of the estate to which she had succeeded from her husband. The question between the parties is whether she was right in so understanding, or whether, on the contrary, the codicil conferred a protected succession upon her husband's relatives, leaving only three-tenths to be disposed of by her will. Dr Mackie's relatives maintain that the codicil ought to take effect as if it formed part of the mutual will, and as if it expressed part of the agreement which the spouses had come to in 1855, at the time when they decided to revoke their marriage contract. In this view the codicil would be irrevocable except by mutual consent. They further argued that it was the clear intention of the parties that Mrs Mackie was to be entitled to dispose by will of three-tenths of the estate and no more. Lastly, it was clear that the legatees were to acquire a jus quæsitum upon the death of Dr Mackie, as otherwise it would have been unnecessary to prohibit them from interfering with Mrs Mackie in the management or use of the funds. There is great force in these arguments if the matter is looked at from a purely technical point of view, but when one looks at the substance of the thing it is seen that the codicil was purely gratuitous, and that the bequest would have been equally effectual if it had been contained in a codicil executed by Mrs Mackie alone. The codicil did not in any way partake of the nature of a contract or of a mutual will, because Mrs Mackie, without receiving any consideration whatsoever, bequeathed to her husband's relations a portion of the estate to which she was entitled to succeed upon his death in virtue of the antecedent contract contained in the mutual will. I know of no case in which a gratuitous bequest by a wife in favour of her husband's relations has been held to be irrevocable by her merely because it was embodied in a writing which was in the shape of a mutual will or codicil. Further, the clause which reserved to Mrs Mackie her full interest under the mutual will is significant. It was not necessary to reserve her right to dispose of the property inter vivos, because the codicil did not purport to operate upon any property except what might be extant at her death. Accordingly, if any meaning is to be given to the reservation, the parties must have intended that notwithstanding the terms of the codicil she should have full power to dispose of the whole estate as she pleased by will or otherwise. As Dr Mackie was presumably in bad health at the time when the codicil was executed, it was natural that he and his wife should consider what was to become of his property after her death, and it was equally natural that they should arrange what proportion should go to his relatives and what proportion to hers. The matter was urgent in his case, and accordingly the codicil contains careful provision as to the division of the seven-tenths among his relatives, whereas the destination of the three-tenths, which was to be at his wife's disposal, was left over for her future consideration. I do not doubt that both parties intended at the time that after the death of Mrs Mackie the estate to which she had succeeded from her husband should be divided in the manner and in the proportions stated in the codicil, but I see no reason to infer that Mrs Mackie contracted that she would not change her mind as to the disposal of the estate which might belong to her at her death. It is a fallacy to suppose that a codicil necessarily takes effect in the same way as if it had been contained in the will. The same words may bear different meanings according to the circumstances in which they are used. If the words of the codicil had been contained in the mutual will it would have been difficult to maintain that the bequest to Dr Mackie's relatives was revocable by Mrs Mackie alone. I doubt whether the observations of the Lord President in the case of United Free Church v. Black, 1909 S.C. 25, were intended to apply to a substitute marriage contract like the deed in the present case and in Croll's case. Further, I know of no case where a clause in a contractual will to the effect that the wife should have at her disposal by will a certain proportion of the estate was construed as leaving her free to dispose of the whole estate. Accordingly my decision is based upon the specialty that the claim of Dr Mackie's relatives has no other foundation except a gratuitous codicil which was executed by Mrs Mackie in concert with her husband for the purpose of giving effect to their joint wishes at the time. She was, in my opinion, entitled to change her mind as she subsequently did.

“I shall pronounce a finding to the effect that Mrs Mackie had power to dispose as she thought fit of the whole estate which belonged to her at the time of her death, and that her testamentary writings must receive effect according to their terms.”

The claimants Miss Jessie Bruce Mackie and others reclaimed, and argued—The later deed was part of the earlier and was to be read along with it. The whole was contractual and onerous, and could not be altered by the survivor. It dealt with the joint estate, and even if the claimants were wrong as to the wife's estate, the husband's estate must go as directed— in re

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Fraser, [1904] 1 Ch 726, per Stirling, L.J., at p. 434; Corrance's Trustees v. Glen, March 20, 1903, 5 F. 777, 30 S.L.R. 526; Croil's Trustees v. Alexander, June 13,1895, 22 R. 677, 32 S.L.R. 535; United Free Church of Scotland v. Black, 1909 S.C. 25, per L.P. at p. 29, 46 S.L.R. 87 ( s.v. Crawford's Trustees v. Crawford's Trustees and Others); Lawrie's Executors. Haig, 1913 S.C. 1159, per L.P. atp. 1161, 50 S.L.R. 898. In these cases the deed in question was not taking the place of an admittedly onerous contractual deed as in the present case. Reference was also made to Tweeddale's Trustees v. Tweeddale, December 16, 1905, 8 F. 264, per L.P. at p. 273, 43 S.L.R. 193, as to the way in which different testamentary writings were to be read.

Argued for the claimants Mrs Robertson and others—The codicil was not mutual except in form. By it Mrs Mackie gave up a valuable right which was secured to her by the onerous settlement which took the lace of the marriage contract. It reserved her right and interest under the settlement expressly. Neither settlement nor codicil carried anything but the estate of the predecease. Even if the codicil were regarded as a contractual obligation by Mrs Mackie, it was gratuitous and therefore revocable— Melville v. Melville's Trustees, July 15, 1879, 6 R. 1286, 16 S.L.R. 742.

At advising—