Scottish Court of Session Decisions

Lord Justice-Clerk (Scott Dickson).—In this case the testator died on 16th February 1922. He was survived by his widow and two children, one born on 23rd January 1915 and the other on 6th April 1918. He left several testamentary writings, but we need refer only to two of these. The last one was a holograph will executed on 31st July 1917 which is in the following terms:—[His Lordship quoted the will].The other was a more formal deed executed on 13th February 1917, by which provision was made for children of the testator who should survive his wife and attain twenty-one years of age.

Two points were argued before us: (1) What was the effect of the conditio si sine liberis as to the holograph will? and (2) How far in the circumstances was the deed of 13th February 1917 affected by the conditio?

As to the first of these questions, in my opinion, the holograph will was revoked by the subsequent birth of the testator's second child. At the date of that will the elder child was about three years of age, and, assuming that the second child had been conceived at that date, this would not be in the knowledge of the testator. While the application of the conditio depends, according to the law of Scotland, on the special circumstances of each case, there are, in my opinion, in this case no circumstances sufficient to elide the conditio. I refer particularly to the first case of Elder. In my opinion the first question should be answered in the affirmative.

With regard to the second question—viz., How far was the deed of 13th February 1917 affected by the birth of the testator's second child?—in my opinion the holograph document of July must be regarded as having, in the circumstances existing at the date, revoked the prior deed of February. The document of July disposed of the testator's “whole means and estate.” It was therefore a universal settlement, and so must be held to have revoked the prior settlement of February. But this was an implied, and not an express revocation. The birth of the second child revoked the document of July, the result being that the testator's estate must, in my opinion, be distributed as if the July document had never existed. But I think it is not a legitimate inference that, because the deed of July was revoked by the birth of the second child, the prior deed of February was also thereby revoked. On the contrary, in my opinion, the deed of February remained unaffected by the birth of the second child. If there had been no deed in July, the birth of the second child would not, in my opinion, have affected the February deed, and I cannot accept the reasoning that, because of the July deed which proved ineffective in consequence of the birth of the second child, the February deed also became ineffective. I think the consequences of the birth of the second child were exhausted by the revocation of the July deed, and left the February deed unaffected.

I cannot agree with some of the observations which were made in the second Elder case; moreover, the circumstances in that case were materially different from those in the present case. In particular, the revocation in the Elder case was express, and the will there in question was executed some thirty years prior to the testator's death.

In my opinion question 2 a falls to be answered in the affirmative, and 2 b in the negative.

Lord Ormidale.—Two questions are submitted to the Court in this special case. With regard to the first, Whether the holograph settlement of 31st July 1917 was revoked by the birth of the testator's second child on 5th April 1918? I agree with your Lordship in holding that it was. The presumption is that it was, and that presumption can only be rebutted by circumstances relevant to infer that the testator, notwithstanding the birth of the child, intended that his will, which made no provision for her, should stand. Two circumstances are founded on by the first party—the terms of the will itself, and the lapse of four years between the birth of the child and the death of the testator. It cannot be disputed that mere lapse of time is not sufficient by itself to rebut the presumption. That is concluded by authority. But I see no reason for holding that it may not be an element of some force, taken in conjunction with other considerations, if there are any, bearing on the question. The only other circumstance founded on by the first party is the fact that there was a child in existence at the date of the will, and that the testator excluded it from any benefit thereunder. I do not, however, think that, strictly speaking, it is legitimate to take into consideration the terms of the will which is impliedly revoked as relevant to instruct to any extent the intention of the testator after its revocation, for by presumption of law, whatever the intention of the testator may have been at the date of his will, it ceased to be his intention when the second child was born to him. That was so decided in Elder's Trustees. As I read that decision the presumption of law operates with precisely the same effect in the case of a testator to whom an additional child is born after the date of his will, as in the case of a testator who was childless when he executed his settlement but afterwards has issue. If that is so, then the special circumstances which are habile to rebut the presumption must be sought for after the date of the child's birth if the will is to stand. The case of Stuart-Gordon is not really an exception. As Lord Young puts it in Crow v. Cathro, the testator must say or do something to show that he considers his former will still good. It may be that in the present case he would have preferred his wife to two children, just as he did to one. But that is mere conjecture in the absence of any indication of what was in the testator's mind subsequently to the birth of the second child. For the like reason I think no assistance can be obtained from a consideration of the will of 13th February 1917.

The second question—Whether, in the event of an affirmative answer being given to the first question, the trust-disposition and settlement of 13th February 1917 is operative as an effective disposition of the testator's estate, or does the estate fall to be dealt with as intestate succession?—is, to my mind, one of great difficulty. In the second report of Elder's Trustees, the effect of the revocation, implied by the birth of a child, of a testator's will, which contained no provision for children nascituri, on an earlier will, which did contain such a provision, was considered, and it was decided that the earlier will did not become operative. But in the will impliedly revoked by the birth of the child there was an express revocation of all prior deeds, and the express revocation, it was held, did not itself suffer implied revocation along with the provisions affecting the disposal of the estate. My first impression was that the present case was covered by the reasoning of the Judges in Elder's case, although Mr Nicolson's will of 31st July 1917 contained no words expressly revoking the prior settlement of 13th February 1917. It was a universal settlement, and therefore impliedly revoked the prior will. On principle, therefore, I was inclined to think that, revocation being plainly the intention of the testator, and being just as effectively secured as if he had used the words “I revoke the will of 13th February 1917”, and, further, as the deed expressing that intention was not set aside by any act of the testator himself, but by a rule of law which presumes a change of intention on the testator's part, in the altered circumstances, with regard to the disposition of his estate and nothing else, his implied intention ought still to be effective, and that the result would be intestacy. But the opinions of the Judges must be read with reference to the precise terms of the deed with which they were dealing. So reading them, the question now to be determined was not matter of decision, although there is a clear expression of opinion on it by Lord M'Laren. Having in view the law as to express revocation laid down by the Lord Justice-Clerk (Inglis) in Leith v. Leith, and the distinction drawn by him between express revocation and implied revocation, I have come, though with some hesitation, to agree with your Lordship that Mr Nicolson's settlement of 13th February 1917, which contains provisions for children nascituri, and is not therefore affected by the presumption si testator sine liberis, has become operative as an effective disposition of his estate.

Lord Hunter.—I concur. The first decision in Elder is authority for the proposition that the birth of a second child creates a presumption in favour of the settlement being revoked, just as if the case were that of a childless man who, having made a settlement, has a child subsequently to the date of the settlement. And I agree with your Lordship that, in this case, there are no special circumstances to take it outwith the scope of the presumption.

As regards the second question, I agree that there is some difficulty, particularly in view of the expressions of opinion in the second case of Elder. But it appears to me that the sound way of looking at the matter is that, as the deed that is being revoked by the birth of the second child did not expressly revoke the previous settlement, the implied revocation is swept away and the earlier deed is restored, as your Lordship has indicated.