Scottish Court of Session Decisions

Thomas Bennet Clark, as executor-dative of Sarah Elizabeth Crumpton, pursuer, raised an action of multiplepoinding against himself as judicial factor on the estate of William Thomas Crumpton, nephew of Sarah Elizabeth Crumpton, and Dr Barnardo's Homes, London, defenders. Claims were lodged by Charlotte Augusta Crone and others, cousins once removed and next-of-kin of William Thomas Crumpton, by the pursuer as judicial factor on William Thomas Crumpton's estate and also as executor of Sarah Elizabeth Crumpton, and by Dr Barnardo's Homes, London.

The holograph will of Miss Sarah Elizabeth Crumpton was in the following terms:—“The last will and testament of Sarah Elizabeth Crumpton. Now in exercise of the said power and of every other power now or at the time of my decease thereto enabling me, I appoint the said sum of Ten thousand pounds and the residue of my father's estate in manner following, to my nephew William Thomas Crumpton all the principal and sum of Eight thousand pounds, and the residue of my father's estate and all interest due in respect thereof at the time of my death, and also all the rest, residue, and remainder of my estate, real and personal. I appoint, devise, and bequeath the same unto my nephew William Thomas Crumpton, his heirs, executors, and administrators absolutely, provided always nevertheless that in case my nephew shall die without issue I appoint the said sum of Eight thousand pounds and the residue of my said father's estate, and I give, devise and bequeath all my estate which I shall die possessed of to be equally divided

Page: 597↓

between establishing in London a home for penniless and unfortunate women and girls who desire to lead a better life (and as long as they continue to do so to reside in it) and Dr Barnardo's Home in London for stray children; I bequeath to Mrs Mary Laurie, widow of Mr William Laurie, formerly merchant of Barbadoes (once of the firm of Barron & Laurie of Barbadoes), the interest of One thousand pounds for her life, and if her daughter Mrs Edgehill survives her, to be paid to Mrs Edgehill; if my nephew William Thomas Crumpton survives Mrs Edgehill, he is to receive it, or rather it is to be put in trust for him, the principal, and paying him the interest only; if he does not survive Mrs Edgehill her children are to have the principal sum of One thousand pounds divided equally among them; to my former servant Alice Thompson of Barbadoes I give the interest of Five hundred pounds for her life, and if my nephew survives me the principal sum of Five hun hundred and the interest (is to be placed in trust for him), he receiving the interest only, and this also applies to the Eight thousand pounds left him as above. I empower my executors hereinafter named to see that the above directions are carried out as my wish now expressed, and I revoke all testamentary instruments heretofore made by me—In witness whereof I have hereunder set my hand this tenth day of August one thousand eight hundred and ninety-one. (Signed) Sarah E. Crumpton, attesting witnesses.” [ The words in italics were deleted in the will.]

The facts of the case were—Miss Sarah Elizabeth Crumpton died at Dumfries on February 5, 1899. As her will contained no nomination of executors the pursuer was appointed executor-dative by the Sheriff of Dumfries on 17th March 1899. Miss Crumpton was the only daughter of ThomasCrumpton, Barbadoes, and was born in Barbadoes. She came to London in 1884. In June 1899 she went to Dumfries, where she resided till her death. At the date of her death she possessed £150 in cash and some personal belongings; in addition, in the circumstances which arose at her death, she had power to appoint by testamentary writing for such interest or interests and in such manner and form as she might choose, to such person or persons as she might choose, the capital of a legacy of £10,000 left to her by her father in his will. Her father's will also made a provision of £10,000 for his son Thomas (Miss Crumpton's brother), who died shortly after his father leaving an only son William Thomas Crumpton. Thomas Crumpton senior's estate was not sufficient to provide for those provisions of £10,000each and other legaciesin full, and the sum, of which Miss Crumpton ultimately enjoyed the liferent, amounted at her death to about £6000. The pecuniary legacies bequeathed by Miss Crumpton exceeded the amount of her estate and the legacies were proportionately reduced. The legatee, Alice Thompson, died in December 1891. Mrs Laurie died in 1900, survived by her daughter Mrs Edgehill, who also survived William Thomas Crumpton. The pursuer held the legacy of £1000 (as diminished), or two nineteenths of the executry estate, for Mrs Edgehill in liferent and her children in fee. The remaining seventeen nineteenths of the estate formed the fund in medio in the action. William Thomas Crumpton was married but was predeceased by his wife. He had no issue. He became insane in 1882 and was confined in an asylum from 2nd April 1882 till his death on 22nd February 1916. He died intestate. The pursuer was appointed his curator bonis on 5th June 1884, and on 3rd April 1916 he was appointed judicial factor on his estate.

The pursuer as judicial factor of William Thomas Crumpton claimed, inter alia, the whole fund in medio, and pleaded, inter alia—“1. On a sound construction of the will of the said Miss Sarah Elizabeth Crumpton, the said William Thomas Crumpton was entitled to the fee of the bequest of £8000 and the residue of her estate and to the fee of the £500 liferented by the said Alice Thompson, and the claimant, as judicial factor foresaid, is accordingly entitled to be ranked and preferred to the whole fund in medio.”

Dr Barnardo's Homes claimed the whole fund in medio, or alternatively one-half thereof, and pleaded, inter alia—“1. On a sound construction of the said Miss Sarah Elizabeth Crumpton's last will and settlement, the claimants are entitled to be ranked and preferred in terms of one or other alternative of their claim. 2. The said William Thomas Crumpton having died intestate and without issue, the claimants are entitled in terms of the said Miss Crumpton's last will and testament to payment of the whole, or otherwise one-half, of the fund in medio.”

On 6th March 1917 the Lord Ordinary ( Hunter) found that the interest which William Thomas Crumpton took under the will of Sarah Elizabeth Crumpton was restricted to a liferent and that the fee of the securities representing the sum of £8000 and the residue of the estate bequeathed by said will, including in said residue the securities representing the sum of £500 liferented by Alice Thompson, was destined to the extent of one-half for establishing in London a home for penniless and unfortunate women and girls who desired to lead a better life, and to the extent of the other half to Dr Barnardo's Homes in London for stray children, and ranked and preferred Dr Barnardo's Homes to one-half of the fund in medio, and allowed the pursuer to submit a scheme showing how he proposed to administer or dispose of the other half of the fund in medio, and granted leave to reclaim.

The pursuer reclaimed, and argued—William Thomas Crumpton's interest in his aunt's will was not restricted to a liferent. It was given to him “absolutely”—that word was meaningless if he only got a liferent. Further, his heirs, executors, and administrators were called. The clause at the end of the will was merely intended to provide for the mode in which the bequest was to be enjoyed (the testatrix being aware that William Thomas Crumpton was insane

Page: 598↓

and would require guardians), and did not create a restriction to a liferent— Tweed—dale's Trustees v. Tweeddale, 1905, 8 F. 264, per Lord President Dunedin at p. 274, 43 S. L. R. 193. If a liferent had been intended to be given, the testatrix knew how to express a gift of fee and liferent and would have expressed her intention. In any event it was for the respondents to show that the initial absolute gift had been restricted. Further, the will nominated no executor and appointed no trustees. The only executor was the pursuer as executor-dative, and as such he was not a trustee— Jamieson v. Clark, 1872, 10 Macph. 399, per Lord President Inglis at p. 405, 9 S.L.R. 233. An executor nominate only was given the powers of a trustee—Executors (Scotland) Act 1900 (63 and 64 Vict. cap. 55), section 2. The Court would not correct that omission— Mitchell v. Mitchell, 1877, 5 R. 154, per Lord Justice—Clerk Moncreiff at p. 159, and Lord Ormidale p. 160, 15 S.L.R. 102. If the fee once vested in William Thomas Crumpton there was therefore no means of protecting other beneficiaries. And it followed that there was no substitution to William Thomas Crumpton but merely a conditional institution. The presumption was against substitution and in favour of conditional institution in moveable succession— Brown v. Coventry, 1792, M. 14,863. The intention of the testator always determined whether there was conditional institution or substitution. Here vesting was absolute as was shown by the use of the words heirs, executors, and administrators. The proviso relating to William Thomas Crumpton's death without issue referred to his death before the testatrix. Substitution in moveable succession was permissible— Christie v. Christie, 1681, M. 8197; Campbell v. Campbell, 1740, M. 14,855; M'Dowall v. M'Gill, 1847, 9 D. 1284. But if here there was any substitution at all it was conditional upon William Thomas Crumpton dying without issue, a conditional substitution requiring a very explicit expression of the testator's intention— Johnston v. Greig, 1831, 9 S. 806, per Lord Fullerton at p. 827, 1833, 6 W.S. 406. In reality the present was a bequest subject to a condition which could be only purified after the death of the testatrix, and that was not a substitution— Lawson v. Imrie, 1841, 3 D 1001, per Lord Fullerton at p. 1004. If, however, there was a substitution it was evacuated. Substitution was not recognised by the Roman law; later it was fully recognised with regard to heritage where the superior recognised a series of substituted heirs. Thereafter the doctrine was applied to moveables, but just as in the case of heritage the substitution remained operative only so long as the deed containing the substitution remained the title to the property. Thus in a bond where there was a substitution, the moment the money was paid the substitution was spent, for the title to the money was no longer the bond containing the substitution. The same result followed where a bequest with a substitution was immixed in the legatees' other estate— Buchanan's Trustees v. Daleiel's Trustees, 1868, 6 Macph. 536, per Lord President Inglis at p. 539, 5 S.L.R. 325. Here while the estate remained in Miss Crumpton's executor the substitution, if there was one, operated, but the moment William Thomas Crumpton got the fund the substitution was evacuated.

Argued for the claimants—Dr Barnardo's Homes (respondents)—The clause at the end of the will clearly restricted the absolute gift to William Thomas Crumpton to a liferent— Tweeddale's Trustees v. Tweeddale (cit.), per Lord President Dunedin p. 273. That clause was not to be taken as pro non scripto as being repugnant to the earlier absolute gift, but as a qualification on that gift— Russell v. Bell's Trustees, 1897, 24 R. 666, 34 S.L.R. 497; Miller Richard's Trustees v. Miller Richard, 1903, 5 F. 909, 40 S.L.R. 663. In the case of a charitable bequest the absence of a nomination of executors or trustees caused no difficulty— Patullo, 1908, 46 S.L.R. 712; Magistrates of Dundee v. Morris, 1858, 3 Macq. 134. If executors had been nominated they would have been trustees— Ainslie v. Ainslie, 1886, 14 R. 209, per Lord President Inglis at p. 211, 24 S.L.R. 164. If William Thomas Crumpton took a fee, those claimants were substituted to him. A substitution always included a conditional institution and never referred to any special time. A conditional institution always referred to a special punctum temporis— M'Dowall v. M'Gill ( cit.); Dyer v. Carruthers, 1874, 1 R. 943, 11 S.L.R. 539; Buchanan v. Dalziel's Trustees ( cit.). Here there was no reference to any special point of time. Further, a substitution did not require any machinery to carry it out. If there was a substitution it had not been evacuated, for the legatee was incapax and his curator could not alter his succession.

At advising—