Scottish Court of Session Decisions

David Montague Alexander Chalmers, trustee and executor acting under the trust-disposition and settlement of the late Charlotte Susan Chalmers, who resided at 3 St Swithin Street, Aberdeen, pursuer and real raiser, brought an action of multiplepoinding and exoneration against (1) George Leslie Thomson, Aberdeen, (2) Mrs Edith Harriet Annie Simpson or Little-dale, Aberdeen, and (3) Archibald Foote Simpson and others, trustees acting under the marriage contract of Lieutenant Little-dale, R.N., and the said Mrs Littledale, defenders, for the determination of certain questions regarding the disposal of a portion of Miss Chalmers' estate.

The pursuer averred, inter alia—“1. The pursuer is holder of the executory estate of the said Charlotte Susan Chalmers, the residue of which is destined under her trust-disposition and settlement to the defender Mrs Littledale or the defenders, her marriage-contract trustees. The said estate includes funds hereinafter referred to which formerly belonged to her sister the said Anne Chalmers. 2. By feu-disposition dated 11th November 1876 Duncan M'Millan, architect, Aberdeen, sold and disponed ‘to and in favour of the said Miss Anne Chalmers and Miss Charlotte Susan Chalmers, equally between them, and the survivor of them, and the heirs and assignees of the survivor, but exclusive of assignees before these presents are recorded in the Register of Sasines, the house No. 3 St Swithin Street, Aberdeen.’ The said feu-disposition was, with warrant of registration on behalf of the said disponees, in terms of the said destination, in the following terms:—‘ Register on behalf of Miss Anne Chalmers and Miss Charlotte Chalmers, both residing in Aberdeen, in the register of the county of Aberdeen—[The words underlined were deleted, and the words in italics were added, by way of amendment at the hearing in the Inner House]—recorded in the Division of the General Register of Sasines applicable to the county of Aberdeen on 14th November 1876. Thereafter the two sisters lived together in the said house until the death of Anne Chalmers. 3. Anne Chalmers died on 21st February 1899 leaving a holograph will and codicil dated respectively 20th June 1888 and 5th July 1897 and registered in the Sheriff Court Books of the county of Aberdeen on 1st March 1899. Her estate at the time of her death consisted of ( a) a one-half pro indiviso share of the house and furnishings at No. 3 St Swithin Street, and ( b) certain funds invested or in bank. By her said will she made provision for the payment of various pecuniary and special legacies, but with regard to the residue, which includes the estate described under letter ( a) aforesaid, questions have now arisen as to whether or not the interest of her sister Charlotte Susan Chalmers was restricted to a liferent, and conflicting claims based on alternative constructions of the will have been intimated to the pursuer as hereinafter described. 4. Anne Chalmers appointed no trustee or executor by her said will, and Charlotte Susan Chalmers was decerned and confirmed executrix-dative qua next-of-kin to her deceased sister, conform to testament-dative expede before the Sheriff of Aberdeen, Kincardine, and Banff at Aberdeen on 12th April 1899, and thereafter proceeded to realise and distribute her sister's estate. She made payment of the said pecuniary and special legacies to the various legatees, but quoad ultra the whole estate remained in her possession and under her control until her death, and she continued to reside in the said house during the whole of that period. It thus comes about that the pursuer as executor of Charlotte Susan Chalmers holds the whole residue of the estate of Anne Chalmers included in the estate of Charlotte Susan Chalmers. 5. Charlotte Susan Chalmers died on 25th September 1921. By her trust-disposition and settlement dated 2nd September 1908, and with codicils dated respectively 23rd September 1919 and 12th November 1919, registered in the Sheriff Court Books of the county of Aberdeen on 29th September 1921, she conveyed her whole estate to Alexander Webster, advocate in Aberdeen, her nephew, whom failing to David Montague Alexander Chalmers, advocate in Aberdeen, her nephew, as trustee, and nominated said trustee to be also her executor. The said Alexander Webster

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predeceased the testatrix, and accordingly the office of trustee and executor devolved upon the said David Montague Alexander Chalmers, who accepted office and is the pursuer and real raiser in this action. The testatrix further directed that on her death her whole property and estate should be realised into money as soon as possible, and after making provision for the payment of her debts, deathbed and funeral charges, and certain legacies, she directed her executor to pay over the residue of her means and estate to her grandniece the said Edith Harriet Annie Simpson or Littledale, wife of Herbert Francis Littledale, or to the trustees under their marriage contract. An extract of said trust-disposition and settlement is produced and referred to. 6. The defender George Leslie Thomson maintains that on a true interpretation of the will of Anne Chalmers the estate in the pursuer's hands, so far as it comprises estate which formerly belonged to Anne Chalmers, and including the value of the share of house and furniture at No. 3 St Swithin Street aforesaid which formerly belonged to her, now comes to him as fiar of her estate, and he claims payment accordingly. The said house was sold by public roup on 2nd November 1921 and realised the sum of £1280. To obviate any question of title with the purchaser of the house the said George Leslie Thomson has agreed without prejudice to be a consenter to the deed of conveyance and to accept half the price of the house in lieu of his right to one pro indiviso half of the subjects in the event of his contentions being upheld. The said furniture was also sold at the same time and realised the sum of £342. The defenders Mrs Littledale's marriage-contract trustees maintain that the will of Anne Chalmers operated a gift to Charlotte Susan Chalmers of the estate claimed as aforesaid by George Leslie Thomson, and that the said estate is properly included in the estate of Charlotte Susan Chalmers and falls to be disposed of in terms of her trust-disposition and settlement. The whole estate in the pursuer's hands amounts to the sum of £10,000 or thereby, of which the sum of £3500 or thereby represents the estate formerly belonging to Anne Chalmers. The legacies which fall to be paid under the trust-disposition and settlement of Charlotte Susan Chalmers amount in all to the sum of £2305, so that the pursuer has in any event ample funds wherewith to pay the said legacies in full. Accordingly the said defenders Mrs Littledale's marriage-contract trustees claim that the said disputed estate goes to swell the residue of the estate of Charlotte Susan Chalmers, and as assignees in trust of her residuary legatee they claim that payment of it should be made to them. … 9. The fund in medio consists of the following sums—(1) The sum of £640, being one-half the gross proceeds of the sale of the said house. (2) The sum of £171, being one-half the gross proceeds of the sale of the said furniture. (3) The sum of £2700 or thereby, being the balance of the executry estate of Anne Chalmers.”

Claims were lodged by Mrs Elizabeth Hay Will or Thomson, executrix of the defender George Leslie Thomson, and by Lieutenant and Mrs Littledale's marriage-contract trustees.

George Leslie Thomson's executrix, who claimed to be ranked and preferred to the whole fund in medio, averred, inter alia—“1. The claimant is the executrix-nominate and universal legatory of the said George Leslie Thomsom, conform to holograph last will executed by him, dated 26th April 1894 and registered in the Sheriff Court Books of the county of Aberdeen 28th January 1922. The said George Leslie Thomson died on 23rd January 1922 after the summons in this action had been served. Subject to these explanations and to the further explanation in article 2 of this condescendence the claimant adopts and holds as repeated brevitatis causa articles 1 to 6 and 8 and 9 of the condescendence annexed to the summons under reference to the writs therein mentioned. 2. The claimant maintains that on a sound construction of the last will of Anne Chalmers the said George Leslie Thomson was, subject to the liferent of Charlotte Susan Chalmers, vested in the fee of the whole residue of Anne Chalmers' estate, including her share of the house No. 3 St Swithin Street, Aberdeen, and of the furniture therein, and that accordingly on the death of Charlotte Susan Chalmers the whole of Anne Chalmers' estate in her possession fell to be paid or conveyed to him. The notarial instrument, the trust-disposition and settlement of Charlotte Susan Chalmers, and Mrs Littledale's marriage contract, mentioned in the condescendence and claim for Mrs Littledale's marriage-contract trustees, are referred to for their terms. Explained that the writs upon which the said notarial instrument proceeded did not confer upon the said Charlotte Susan Chalmers any right as an individual to the pro indiviso half of the said house which belonged to the said Anne Chalmers, and that the said notarial instrument was therefore invalid. … 3. With reference to the contention and plea-in-law for Mrs Littledale's marriage-contract trustees added by way of amendment, to the effect that under the terms of the feu-disposition mentioned on record it was not within the power of Miss Anne Chalmers to defeat by any gratuitous deed the destination to the survivor, and that on the death of the predeceasor the right to one-half of the subjects passed in terms of said destination to Miss Charlotte Susan Chalmers, the claimant under reference to the said feu-disposition and the will of the said Miss Anne Chalmers explains and avers as follows:— There was no contractual relationship between the said sisters as far as the gift-over in the said destination was concerned or at all. By the said will Miss Anne Chalmers, subject to certain pecuniary and special legacies, bequeathed to her sister, the said Charlotte Susan Chalmers, the liferent of the residue of her estate with the fee thereof ( including the property) 21 st February 1899 the said Charlotte Susan Chalmers survived for twenty-two years, and during that time not only did she fail to challenge the power of her sister to bequeath the said share of the said property in liferent and fee as aforesaid, but she elected to accept, and did accept, all the provisions of the said will in her favour and thereby approbated the same. Miss Charlotte down to the date of her death on 25 th September 1921 a) approbating the will, and ( b) affording conclusive evidence that the deceased Miss Charlotte did not regard the gift-over in the said destination as contractual. Miss Charlotte Susan Chalmers elected to approbate her sister's will. The claimants Mrs Littledale's trustees represent the residuary legatee under the will of Miss Charlotte Susan Chalmers, and no claim to the pro indiviso share of the said property in respect of the terms of the said feu-disposition was put forward on their behalf until the reclaiming note in the action was under discussion. Moreover, any pretended reversal of the election of Miss Charlotte to approbate the will would be conditional upon restoring the liferent of the remaining items of the estate for the said twenty-two years, which is impossible.” [Averment 3 was added by way of amendment at the hearing in the Inner House.]

Lieutenant and Mrs Littledale's marriage-contract trustees, who claimed one-half of the gross proceeds of the said house and furniture, being items 1 and 2 of the fund in medio, averred, inter alia—“1. The claimants are the trustees acting under the marriage contract of Mrs Edith Harriet Annie Simpson or Littledale. The claimants adopt brevitatis causa articles 1 to 5 inclusive and article 8 of the condescendence annexed to the summons under reference to the deeds therein mentioned for their terms, and subject to the additional statement with reference to the facts narrated in article 4 thereof, that on the death of the said Miss Anne Chalmers a notarial instrument was prepared by Mr Alexander Webster, advocate, Aberdeen (who was the nephew and law agent of the said Miss Anne and Miss Charlotte Susan Chalmers) proceeding on Miss Anne Chalmers' infefment in the one-half pro indiviso share of the said No. 3 St Swithin Street, Aberdeen, and the conveyance by her to the said Miss Charlotte Susan Chalmers contained in her said will; that the said notarial instrument was duly recorded on 13th October 1899 in the Division of the General Register of Sasines applicable to the county of Aberdeen, and that succession duty on the said one-half share of the said house and legacy duty on the one-half share of the furnishings thereof was paid by Miss Charlotte Susan Chalmers. The said Mrs Littledale is the grandniece of the testatrix Miss Anne Chalmers and of Miss Charlotte Susan Chalmers. The latter by her trust-disposition and settlement, as stated in article 5 of the condescendence annexed to the summons, directed her executor to pay to the said Mrs Littledale or to these claimants as her marriage-contract trustees the residue of her means and estate. By the said Mrs Littledale's marriage contract she assigned and disponed, inter alia, to her marriage-contract trustees the whole property, means, and estate, heritable and moveable, real and personal, to which she might succeed and acquire right during the subsistence of the marriage.… Explained that the said feu-disposition expressly bore to be ‘in consideration of the sum of one thousand, two hundred and sixty pounds sterling instantly paid to me, and of the feu-duty hereinafter stipulated to be paid to me by Miss Anne Chalmers and Miss Charlotte Susan Chalmers, both residing in Aberdeen. 2. With reference to the statements contained in article 3 of the condescendence for Mrs Elizabeth Hay Will or Thomson (executrix of George Leslie Thomson) added by way of amendment, these claimants admit that after the death of the said Anne Chalmers on 21st February 1899 the said Charlotte Susan Chalmers survived for twenty two years, that Miss Charlotte down to the date of her death on 25 th September 1921 enjoyed the liferent of the residue of the said Miss Anne Chalmers' estate. Quoad ultra the statements contained in the said article 3 are denied. Explained that Miss Charlotte Susan Chalmers had no opportunity or occasion to challenge her late sister's will. She was never in a position to exercise any choice or election between her rights under the said feu-disposition and her rights under her sister's will (on the assumption that any conflict of rights arose therefrom, which these claimants deny). She was never informed in any way that any question of election arose, and she did not in fact ever make any election. The said notarial instrument was prepared and recorded by Miss Charlotte Susan Chalmers' law agents as a conveyancing step, and these claimants do not admit that she herself had any knowledge of the terms in which it was expressed.” [The words in italics were added by way of amendment at the hearing in the Inner House.] “3. The claimants contend that the will of Miss Anne Chalmers operated as a gift to Miss Charlotte Susan Chalmers of one-half share of the house and furnishings of No. 3 St Swithin Street,

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Aberdeen, and that under the provisions of Miss Charlotte Susan Chalmers' trust-disposition and settlement and of Mrs Littledale's marriage contract they are entitled thereto.” George Leslie Thomson's executrix pleaded, inter alia—“2. The right of the said Charlotte Susan Chalmers in the pro indiviso half of said house, and in the half of the said furniture which belonged to the said Anne Chalmers, having been a liferent right only, she could not competently dispose of the fee thereof by her trust-disposition and settlement, and accordingly the claim for Mrs Littledale's trustees should be repelled. 3. The claim by Mrs Littledale's trustees in respect of the alleged contractual nature of the terms of the said feu-disposition to the share of the said house property which belonged during her lifetime to Miss Anne Chalmers should be repelled in respect ( a) that the said claim is irrelevant; ( b) that the said claimants have no title to insist on the claim; ( c) that on the assumption that the destination in the said feu-disposition could not be evacuated by the will of Miss Anne Chalmers, and that Miss Charlotte Susan Chalmers by her survivance became entitled to the whole of the said property, the latter elected to accept, and did accept and enjoy the whole benefit bequeathed to her under Miss Anne Chalmers' will, and thereby approbated the same and barred herself and her representatives from claiming that Miss Anne Chalmers had no power to dispose of her pro indiviso share of the property and from reprobating that portion of the said will which purports to dispose of the fee thereof. 4. Esto that Mrs Littledale's marriage-contract trustees have a title to and are not barred from claiming that Miss Anne Chalmers had no power to dispose by her will of the said pro indiviso share of house property, they are as a condition of such claim ( a) bound to renounce and restore the whole benefit taken by Miss Charlotte Susan Chalmers under the said will; or ( b) bound in any event to restore the value of such benefit to the extent required for giving equitable compensation to this claimant; and accordingly this claimant is entitled to the proceeds of the sale of the said share as a surrogatum for such compensation.” [ Pleas 3 and 4 were added by way of amendment at the hearing in the Inner House.]

Lieutenant and Mrs Littledale's marriage-contract trustees pleaded, inter alia—“2. In respect that under the terms of the said feu-disposition it was not within the power of the said Miss Anne Chalmers to defeat by any gratuitous deed the destination to the survivor, and that on her death her right to one-half of the subjects passed in terms of said destination to Miss Charlotte Susan Chalmers, these claimants are entitled to be ranked and preferred to the fund in medio so far as consisting of the proceeds of the sale of the said subjects. 3. The averments of the claimant Mrs Elizabeth Hay Will or Thomson added on amendment are irrelevant.” [ Pleas 2 and 3 were added by way of amendment at the hearing in the Inner House]