Scottish Court of Session Decisions

Mrs Annie Crichton or Duncan, pursuer, brought an action against (1) Thomas Smith and others, the testamentary trustees and executors of the deceased James Crichton, watchmaker and jeweller, Glasgow, father of the pursuer, and (2) for any interest they might have, against Mrs Margaret Russell Crichton or Bissett and others, defenders, concluding, inter alia, for decree that “the defender the said Mrs Margaret Russell Crichton or Bissett is bound to collate, as a condition of sharing in the said legitim fund, the following payments and gifts made and given to her by her father the said James Crichton during his life, or the value thereof, viz., ( first) three thousand shares of one pound each fully paid of James Crichton, Limited; ( second) the furniture and plenishing of the villa at Wemyss Bay which was owned by the said deceased James Crichton; ( third) the furniture and plenishing of the house fifteen Belmont Crescent, Glasgow; and ( fourth) the sum of seven hundred and fifty pounds sterling, being a payment of two hundred and fifty pounds per annum during each of the three years between

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the date of the marriage of the said Mrs Margaret Russell Crichton or Bissett and the date of the death of the said James Crichton.”

The pursuer pleaded, inter alia—“3. On an accounting the defender Mrs Bissett is bound to collate all gifts received by her from her father as condescended on.”

The defenders Mr and Mrs Bissett pleaded—“1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. 2. On a sound construction of the trust-disposition and settlement of the late James Crichton, the defender Mrs Bissett not being bcund to collate the gifts received by her, decree of absolvitor should be pronounced. 3. The gifts by the late James Crichton to the defender Mrs Bissett not having been intended to be imputed as advances towards the provisions in her favourunder his trust-disposition and settlement do not fall to be collated by her, and decree of absolvitor should be pronounced.”

The facts of the case appear in the opinion of the Lord Ordinary ( Cullen), who on 17th April 1917 repelled the pleas-in-law for thedefenders Mrand MrsBissettandallowed “the pursuer and the defenders Mr and Mrs Bissett a proof of their respective averments (1) quoad the fact of the making of the gifts by the deceased James Crichton to the defender Mrs Bissett mentioned in the declaratory conclusion of the summons so far as the making of these gifts is not admitted by the defenders Mr and Mrs Bissett, and (2) quoad the values for purposes of collation of the said gifts mentioned in the declaratory conclusion of the summons,” and granted leave to reclaim.

Opinion.—“The late James Crichton, watchmaker and jeweller in Glasgow, died in September 1915, survived by his second wife and by two daughters of his first marriage. The pursuer Mrs Duncan is one of the daughters, and the defender Mrs Bissett is the other. The other defenders are the deceased's testamentary trustees under his trust-disposition and settlement, dated 28th February 1912.

The third purpose of the settlement was—‘For payment and satisfaction to my wife of her legal claims and jus reliciæ from my estate; and also for payment to each of my two daughters, or the survivor of them, of their or her respective claims or claim of legitim from my estate.’

The deceased by his settlement made several conventional provisions in favour of his wife, including a liferent of the residue of his estate. As regards the defender Mrs Bissett, he gave her (1) an annuity of £250 per annum, and (2) a liferent of the residue in the event of her surviving her stepmother from and after the latter's death. He gave no conventional provision to the pursuer Mrs Duncan. The fee of his estate he bequeathed to his grandchildren or their issue. De facto the grandchildren are, as I was informed, the children of Mrs Duncan.

Mrs Duncan claims her legitim from her father's moveable estate. Mrs Bissett is also entitled to legitim. Under the terms of the settlement, and in particular the third purpose thereof, she is entitled to legitim in addition to her conventional provisions in the same way as the widow is entitled to jus relictæ in addition to her conventional provisions.

In the first conclusion of the present action Mrs Duncan demands an accounting from her father's trustees for her legitim. There is so far no question to be considered in relation to the trustees. The question now calling for consideration is raised by the declaratory conclusion of the (amended) summons, which is directed against Mrs Bissett, and under which Mrs Duncan seeks to have it declared that Mrs Bissett is not entitled to claim and receive legitim from the deceased's moveable estate except on the footing of collating the values of certain gifts made or alleged to have been made to her by the deceased during his lifetime.

These gifts, as alleged by the pursuer, are specified in the declaratory conclusion of the summons and in the condescendence. They are as follows:—(1) 3000 shares of £1 each, fully paid, of ‘James Crichton, Limited,’ a company formed on 1st March 1912 to take over the deceased's business; (2) the furniture and plenishing of a villa at Wemyss Bay which belonged to the deceased, alleged by the pursuer to be worth £500; (3) the furniture and plenishing of a house at 15 Belmont Crescent, Glasgow, alleged by the pursuer to be worth £400 to £500; and (4) the sum of £750, made up of three sums of £250 each, paid by the deceased to Mrs Bissett during the period between the date of her marriage in June 1912 and his death in September 1915.

As regards the fact of these gifts having been made, Mrs Bissett admits the gift of the 3000 shares of James Crichton, Limited, and also the gift of the furniture and plenishing of the villa at Wemyss Bay. She does not admit having received the other gifts alleged by the pursuer. She further challenges the values put by the pursuer on the various gifts admitted or denied by her.

On the questions of fact proof would be necessary (1) quoad the gifts which Mrs Bissett denies the receipt of, and (2) quoad the values of the gifts which she admits, or which may be proved to have been made to her.

Mrs Bissett, however, has in the first plea a preliminary plea which, she contends, displaces the pursuer's case altogether as regards the gifts either admitted or alleged to have been made to her. This plea is founded on the terms of the third purpose of the deceased's settlement. She says that in claiming legitim she is not claiming it ex lege so as to be bound by the legal rule as to collatio inter liberos, but is claiming, under said third purpose, a conventional provision, the amount of which is intended to be the amount of her share of the legitim fund on the basis of no collation taking place. I am unable to sustain this view. The deceased could not test on the legitim fund. The claims of his daughters to legitim were vested in them ex lege. He could not deprive them of their legal claims, and he

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could not bequeath to them such claims. All that the deceased in the third purpose of his settlement directs his trustees to do is to satisfy (1) his widow's legal claims and (2) his daughters' claims of legitim. While it is to be gathered from the settlement that the testator intended that his widow should have her jus relictce and that Mrs Bissett should have her legitim in addition to the conventional provisions made in their favour respectively, I am unable to see in the settlement any expression of intention by the deceased to the effect that in settling the legitim claims of the daughters these claims were to be measured otherwise than in accordance with the common law rules relating to legitim. It is their common law claims to legitim, and nothing different, that he directs his trustees to pay and satisfy under the third purpose.

At the date of the settlement the deceased had not made to Mrs Bissett any of the gifts now in question.

A further question at this stage arises out of the averments made by Mrs Bissett. Esto the gifts admitted by Mrs Bissett were made, she advances averments of fact regarding the quality of these gifts which, if substantiated by proof, are sufficient, she maintains, to infer that the gifts do not belong to the class of gifts or advances by a father to a child which fall to be collated inter liberos. Mrs Bissett explains that she lived in family with her father and her mother, who was an invalid, until the death of her mother, and thereafter with her father until her marriage in June 1912, prior to which date her father had, in September 1911, married again. She further explains that, so living in family with her parents, she had acted a filial part in attending to the requirements of the household, and in particular in attending to the villa at Wemyss Bay, where her father latterly spent a good deal of his leisure time. She sums up her case as to the quality of the gifts in statement 5 of her statement of facts, where she says—‘The said gifts to the defender Mrs Bissett were made by the said James Crichton as a recompense for her trouble in keeping house for him for a long period of years, and as a mark of appreciation of the way she had looked after his wants and comforts.’ To this she adds—‘The defender Mrs Bissett so understood at the time the gifts were made, and the deceased so informed his wife the defender Mrs Agnes M'Callum Fraser or Crichton, telling her at the same time that he had made a new will under which the pursuer would get nothing but her legal rights.’ It would thus appear that when the gifts in question were made to Mrs Bissett they were not accompanied by any announcement to her of the reason why they were given. Mrs Bissett only “so understood. It is difficult to see how the uncorroborated testimony of Mrs Crichton as to what the deceased told her—which is all Mrs Bissett offers—could substantiate her case as to the motive which influenced the deceased in making the gifts. And while the deceased is said to have told his wife that he had made a will under which the pursuer would get ‘nothing but her legal rights,’ the whole question here is as to the measure of the pursuer's legal rights in the circumstances. Assuming it proved, however, that the deceased made the gifts in question to Mrs Bissett for the reasons averred by her, the pursuer maintains that the gifts are none the less such as fall to be collated according to law.

This raises a general question as to collatio inter liberos. The citation of authorities with which I was favoured was somewhat meagre, but probably it represents all that is available. On a consideration of the authorities cited it appears to me (1) that where a father, inter vivos, makes payment or transfer of substantial portions of his moveable estate to one of his children, the value thereof falls, prima facie, to be collated by the favoured child in claiming legitim after his death, (2) that the father may exclude collation by a sufficient expression of his intention that the payments or transfers are to be prœeipua, and that it is not necessary that his intention should be declared unico contextu with the making of them; (3) that in the absence of such an expression of intention by the father, so that the question is whether collation is excluded by the nature of and reasons for the payments or transfers, the most satisfactory statement of the law on the whole is that made by Lord M'Laren in ‘Wills and Successions,’ chapter viii, sec. 2. In section 329 (pp. 168–9 of third edition) Lord M'Laren says—‘Collation does not extend to testamentary or deathbed provisions, for these are chargeable against the executry or dead's part and do not tend to diminish the legitim fund; nor to funds given by the father in his lifetime as a donation in addition to legitim or with the equivalent explanation that the grantee is not to collate or that he should have an equal proportion of his goods at his death or is to be considered a bairn in the house. Some other exceptions have been recognised by the decisions which may be reduced to the following heads—(1) Advances intended as a recompense for services rendered; (2) advances for maintenance and education in minority or prior to emancipation, and which are due ex debito naturali; and (3) advances made in loan and for which the grantee was liable in repayment to the father and his executors. In short, collation applies to provisions as distinguished from payment under obediential obligations, or which are made on the footing of contract.’

As regards this statement of the law, I only desire to point out as regards the case of a child to whom grants of moveable estate had been made being declared by the father to be ‘a bairn of the house,’ Beg v. Lapraik, 1737, M. 2379, that (as the footnote to section 329 mentions) this case was doubted by Erskine, iii, ix, 25, for the natural reason that to style the child a ‘bairn of the house’ did not import a ruling by the father as to the proportion of the legitim fund which the child was to be entitled to take as a ‘bairn’ admitted to participation in it. Lord M'Laren, it will

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be observed, in his ultimate observation in section 329, states the exceptional cases not calling for collation to be those of grants made (1) under obediential obligations, or (2) on the footing of contract, and that the contrast is with ‘provisions.’ No clear definition of what is a ‘provision’ is to be found in the authorities so far as the authorities cited to me go, beyond this, that it excludes casual gifts of inconsiderable amount—such as, for example, birthday presents, or gifts intended for immediate consumption.

I do not think, however, that here we are in this rather indeterminate region. The gifts made or alleged to have been made by the deceased to his daughter Mrs Bissett were all of very substantial portions of his moveable estate, and on the averments appear to have been made for the purpose of endowing or enriching her in the world. Such gifts I take to be ‘provisions’ in the sense of that word as used by Lord M'Laren. They do not fall under his two exceptional categories of payment made (1) under obediential obligations, or (2) on the footing of contract. The defender Mrs Bissett, it is true, argues that, on her averments, they fall under the first of these exceptional categories. I am unable to adopt this view. Her averments do not seem to me to disclose an ‘obediential’ obligation on the part of the father. All she says amounts to no more than this, that her filial conduct while a member of her father's household—involving nothing very remarkable—inspired him with a partiality for her, inducing him to endow her, inter vivos, with a considerable part of his moveable wealth. I am unable to see that this makes an exceptional case avoiding collation. When a father inter vivos voluntarily strips himself of substantial portions of his moveable estate by making them over to a particular child or to particular children, he usually does so in favour of children whose conduct has commended them to him.

I am unable to discern in the averments made by the defender Mrs Bissett any case to the effect that she had performed services to her father in respect of which she had any legal claim against him. Her counsel agreed as to this. Nor do they seem to me to raise a case of an obediential obligation. She seems, on her averments simply to have acted a filial part in her father's home until she left it on her marriage. Thus it results on her averments that the gifts admitted to have been made to her were gifts made merely from a sentiment of partiality induced in the mind of her father owing to her having followed a due course of filial conduct. On this footing I am of opinion that the said gifts fall to be collated, and that the averments made by Mrs Bissett as to the deceased's motives in making them are irrelevant, if proved, to avoid collation.

I should perhaps mention, as regards the three alleged payments of £250 made by the deceased to Mrs Bissett during the period between the date of her marriage in June 1912 and his death in September 1915, that her counsel argued that these payments should be regarded as annual alimentary allowances made by the deceased to her ‘from income,’ and should, so viewed, be held excluded from collation. Mrs Bissett, however, does not admit the fact of these alleged payments having been made and has no averments about them. On the pursuer's averments they figure simply as three gifts of £250 each.”

The statement of facts for the defender, referred to by the Lord Ordinary, was in the following terms (Stat. 5) At the time when he executed his said trust—disposition and settlement the said James Crichton had arranged for his business being converted into a limited liability company, and for an allotment of shares to the defender Mrs Bissett. The memorandum and articles of the said company were signed on 29th February 1912 and the said company was registered on 1st March 1912. Immediately on the company being formed 3000 shares were allotted to the defender Mrs Agnes M'Callum Fraser or Crichton and 3000 snares to the defender Mrs Bissett as gifts from the said James Crichton. By disposition dated 11th October 1912, and recorded 26th February 1913, the said James Crichton gifted to the defender Mrs Bissett his villa at Wemyss Bay. He also gifted to her the furniture therein. The said gifts to the defender Mrs Bissett were made by the said James Crichton as a recompense for her trouble in keeping house for him for a long period of years, and as a mark of appreciation of the way in which she had looked after his wants and comforts. The defender Mrs Bissett so understood at the time the gifts were made, and the deceased so informed his wife the defender Mrs Agnes M'Callum Fraser or Crichton, telling her at the same time that he had made a new will under which the pursuer would get nothing but her legal rights. Said gifts were not intended as payments in advance out of the share of the legitim fund bequeathed to the defender Mrs Bissett, and accordingly do not fall to be collated by her.”

The defenders Mr and Mrs Bissett reclaimed, and argued—Mrs Bissett was not bound to collate the gifts to her. The third purpose of the settlement contained a legacy to her of her legitim. The word legitim was used solely to indicate the quantum of the gift and not to indicate in what capacity her claim was to be held to be made. Thus the use of “legitim” fixed the quantum of the gift at one half of one third of the free executry, for that was the amount of the legitim—Fraser, H. & W., 2nd ed. ii. 1033–54. But Mrs Bissett claimed that quantum not as a child but as a beneficiary under the will taking a legacy left to her. If she had been an illegitimate ‘child she would still have been entitled to that amount of the estate. If she claimed qua beneficiary under the will, then there was no room for collation, for collation assumed a competition between children claiming legitim: no such competition existed if Mrs Bissett's claim was qua beneficiary— Coats' Trustees v. Coats, 1914. S.C. 744, per Lord President Strathclyde at p. 748 and Lord Mackenzie at p. 751, 51

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S.L.R. 690; Monteith v. Monteith's Trustees, 1882, 9 R. 982, per Lord Rutherfurd Clark at p. 1008, 19 S.L.R. 740; Justinian's Inst. ii, 18, pr., was referred to as showing the origin of the doctrine of legitim. But if there was room for collation the circumstances were not such as to admit of the claim, for the terms of the will indicated that the testator's intention was that each child should receive her legitim intact, and further the advances in question were not of a kind which required to be collated, being of a remuneratory nature— Minto v. Kirkpatrick, 1833, 11 S. 632—or being intended as a recompense for services rendered—M'Laren, Wills and Succession, 3rd ed., sec. 329. In any event proof that the advances were for services rendered should be allowed.

Argued for the pursuer (respondent)—Mrs Bissett was not claiming any conventional provision under the settlement; the testator did not bequeath her legitim to her, but merely directed his trustees to settle her claim for legitim. That was exactly on the same footing as a direction to pay deathbed and funeral expenses. It assumed that a claim for legitim was made apart from the settlement and directed payment thereof. Such a claim was an ordinary common law claim for legitim by a child as such, and consequently it was subject to collation— Coats' case ( cit.). Assuming the claim was subject to collation, the averments relating to the nature of the gifts were not relevant to instruct that they did not fall within the category of gifts requiring to be collated. The general rule was, all advances must be—Ersk. iii, 9–24. Clear and unambiguous averments and proof were necessary to show that an advance did not fall under the general rule— Douglas v. Douglas, 1876, 4 R. 105, 14 S.L.R. 54. Here the averments were too vague to go to proof. Mrs Bissett merely understood the gifts were for services rendered. The averments showed the ‘gifts were for a settlement in the world or were the return for the performance of mere filial duty, and that did not bring them amongst the excepted cases— Nisbet's Trustees v. Nisbet, 1868, 6 Macph. 567, 5 S.L.R. 369; Malcolm. v. Campbell, 1889, 17 R. 255, 27 S.L.R. 207. Further, there was not here, as there was in Minto's case, ( cit.) any legal right in Mrs Bissett to the advances in question.