Scottish Court of Session Decisions

At advising on 29th November 1935,—

LORD PRESIDENT (Normand).—The testator, besides leaving to his elder daughter, Mrs Johnston (the second party), a share of the residue of his estate, bequeathed to her liferents of Balfour Castle and the whole of his heritable and moveable property in Orkney, of certain pieces of jewellery, and of a fund in which he had a contingent interest. He attached to each of the bequests of liferent a condition that the second party "will never hold any communication with, nor take any interest whatsoever in, a child known as ‘Master Dennis’ who has recently been residing with her and who it is understood was an inmate or patient of the Children's Hospital, College Crescent, Hampstead, London." The testator provided, in the event of non-adherence to this condition, for forfeiture of the liferents in favour of his younger daughter (the third party). The second party challenges the validity of this condition on certain grounds, and claims to take the provisions in her favour free of the condition, which, she contends, should be treated pro non scripto.

The first objection made to the condition is that it is too vague to receive effect. In order that this objection should succeed it is not enough to say that the beneficiary may be uncertain how she must conduct herself in order to avoid forfeiture. It must be shown that the condition is so defective that it is incapable of legal construction or interpretation—Wemyss v. Wemyss's Trustees . If that test is applied, I am of opinion that the condition stands good. The testator has clearly evinced an intention that Mrs Johnston shall terminate all communication with the boy Dennis and shall cease to be active in promoting his interests, or shall forfeit the liferent provisions. It cannot be maintained that the prohibition against "holding any communication" is more vague than the prohibition against "allowing to reside," which was the prohibition considered in Wemyss. And, if the prohibition against taking an interest in Dennis is somewhat less definite, it derives clearer meaning from its association with the preceding part of the condition. Moreover, the condition as a whole must be observed, and failure to observe the first branch of it would infer forfeiture.

But it was said that a prohibition of this kind is unlawful because it is contra bonos mores and capricious. It was sought to liken it to a prohibition against a child's residence with his parents—Fraser v. Rose; Grant's Trustees v. Grant . But no authority was cited to us which would justify us in extending the principles applicable to the relationship of parent and child to an association between parties between whom no tie of blood exists, and it is obvious that different considerations apply to the two cases. The objection that the condition is capricious is no better founded in law than the others. No admission is made by the parties to the special case as to the testator's reasons for his disapproval of Mrs Johnston's interest in Dennis. But, on the assumption that it was capricious, that is not a legal ground of objection. I therefore hold that the challenge of the validity of the condition fails.

It is stated in the case that Dennis resided with the second party from the autumn of 1931 to January 1933, and thereafter at intervals. In particular he resided with her in her flat in London during the year 1934 and part of the present year. It is also stated that in 1933, after receiving from the testator information that he had made a new will altering her position under a previous will because of her association with Dennis, the second party had parted with the child for a time. It was maintained for the third party that, by her actings, the second party had forfeited the liferent rights. No stress was laid on the conduct of the second party in parting from the child on being told that the testator had altered his will in consequence of his objection to her association with the child, and, in my opinion, the circumstances antecedent to the second party's knowledge of the terms of the will are not relevant. But it was maintained that, by taking the child to reside with her after she became aware of the terms of the testator's will, she had failed to adhere to the condition, and had forfeited the benefits which were subject to the condition, or had, at any rate, made a final election between observance of the condition and these benefits. It was argued that, since the validity of the condition as part of the testator's will is now established, and since the testator's will is operative as from his death, any action by the second party infringing the condition after she became aware of it was taken, so to speak, at her own risk and infers forfeiture. The second party's counsel maintained against this that she was presented with a choice between giving up her interest in Dennisa and forfeiting the liferents, and that she was entitled to make that choice after the validity of the condition was decided by the Court. It is plain that the doctrine of election applies to the present case—Bell's Prin. (10th ed.) secs. 1938, 1939—and the only question is whether the election must be held to have been already made. If there was no authority, it would, I think, be in accordance with principle to hold that, where there is a dispute about the validity of the condition, election may take place after the determination of that dispute in an action timeously raised. In general, the party put to an election is entitled to have before him all the material circumstances by which his choice may be swayed. If there is a dispute whether the party is put to his election at all, it is difficult to see how a properly informed and final election can be made till that dispute is decided. If the condition here had not been binding on the second party, she would not have needed to make any election. It is only now that she knows that she must elect, and, if she is now to be allowed to make her election, there will be no violation of the testator's intention that she shall not take under his will the benefit of the provisions in her favour unclogged by the condition which he attached to them. There is little authority which bears on the question, but in Stirling v. Stirling it was held that election might take place after a decree determining that a disputed forfeiture clause was operative although the decree was pronounced several years after an election might have been made. I hold therefore that the second party has not made her election, but that she may do so now.

I am also of opinion that her choice, once made, is final. It was clearly not the testator's intention that she might intermittently observe the condition and enjoy the liferents with intervals of non-observance and temporary forfeitures.

[His Lordship then referred to a matter with which this report is not concerned, and concluded]—I am for answering question 1 in the affirmative; question 2 (a) in the negative and 2 (b)in the affirmative; question 3 (a) in the affirmative and 3 (b) in the negative. On the view which I have taken the fourth question does not arise.

LORD MORISON .—I agree with your Lordship in the chair. I desire to add a few words in regard to the case of Wemyss, a decision which was closely examined from the bar. There are some passages in the opinions of certain of the learned judges in which it is suggested that our law differs from the law of England in regard to the construction of conditions which are intended to operate a forfeiture of a provision in a settlement. I think that the difference is said to follow from the decision in the case of Clavering. With all respect, I feel bound to dissent from this view. I humbly think that, if Clavering's case had been decided according to Scots law, the same result would have been reached. It was held there that, looking to the language used in the settlement, it was far too uncertain and indefinite to enable the Court to decide what it was that the testator intended should be the event on the occurrence of which the estate was to determine. The decision in that case proceeds, in my humble opinion, on the principle that it is necessary for the truster in his settlement to predicate distinctly what it is that is to operate a forfeiture. I think that is a principle of Scots law which has often been applied. I venture to doubt whether it is permissible to place different constructions upon the like words according as they appear in a suspensive or a resolutive condition. At the date of the Wemyss case the Court of Chancery had power to give directions to trustees in carrying out their duties which this Court did not then possess. This defect in our judicial administration was remedied under section 17 (vi) of the Administration of Justice Act, 1933. I agree that the question should be disposed of as your Lordship proposes.

LORD FLEMING .—In my opinion the condition attached to the legacies in question cannot be deemed to be contra bonos mores. The child Dennis is not a blood relation of the legatee, and it is impossible to regard the condition as being in any real sense analogous to one setting up a barrier between parent and child or interfering with the freedom of marriage. Nor am I able to hold that the condition is void from uncertainty. A bequest of a legacy or a condition attached to a legacy is not invalid merely because it is reasonably susceptible of more than one interpretation. To render it invalid it must be so vague and indefinite as to be incapable of legal interpretation. There may well be difference of opinion with regard to the ambit of the prohibition imposed upon the second party, but it cannot be said that the words used do not admit of interpretation. They are not more vague or indefinite than the words which were under consideration by the Court in Wemyss v. Wemyss's Trustees . It is not necessary—and it would be a difficult task—to define ab ante exhaustively and precisely the extent of the prohibition or to express its meaning and effect in words different from those used by the testator. The prohibition consists of two branches, namely, (1) a prohibition against the legatee communicating with the child, and (2) a prohibition against her taking an interest in it. It was maintained that, if either branch was invalid, then the whole condition was invalid. I cannot agree. According to the terms of the bequest the legatee is entitled to it only if she complies with both branches of the condition. Esto that one is unenforceable, that does not excuse non-compliance with the other.

On the assumption that the condition is valid and effectual, it was argued by the second party that she has not incurred a forfeiture by her conduct in relation to the child, and that she is entitled to a reasonable time after the decision in this case to make up her mind with regard to the course she intends to adopt. I have come to the conclusion that this contention is well founded. It appears to me that the bequest in her favour raises a question of election or approbate and reprobate. She cannot approbate the gift in her favour and reprobate the prohibition imposed upon her. On the other hand, however, if the condition is unenforceable, there is no room for election. In that event the legatee takes the bequest free of the invalid condition. The doctrine of election is an equitable principle. It can only be inferred from a deliberate act of the elector in the full knowledge of all the material facts and of his rights. Here there was what I think we must regard as a bona fide dispute with regard to whether the condition which had to be approbated was valid and enforceable, and I do not think the legatee can be called upon to make her election until she knows whether the condition is binding upon her. If we decide that it is, then she is put to her election. Accordingly, in my opinion, the second party is now entitled to elect to take the bequest subject to the condition, if she sees fit to do so. On the other hand, she is entitled to elect to renounce the legacy, and so be free to associate with the child as she may think proper. I agree that the questions should be answered as proposed.

LORD MONCRIEFF .—I am of the same opinion. According to the law of Scotland, when a condition annexed to a testamentary provision purports to regulate conduct, whether the condition be suspensive of enjoyment or resolutive of the right, it is only necessary in order to allow of the condition being enforced that it be expressed in terms sufficiently determinate to advertise the beneficiary and the Court of the general course of conduct which has been enjoined. In the present case, while the conveyancer has in my opinion been something less than happily inspired in his choice of terms in which to frame the prohibition, and while the second party was accordingly fully entitled to apply for guidance from the Court, I have found myself unable to read the condition as framed without recognising that, in any event, it was directed towards the cutting off of all the existing relations between the beneficiary and the child. To "hold communication" implies an interchange in which both the parties who communicate have independently been active, and to "take an interest" in contrast with "feeling an interest" (which latter may be merely sentimental and beyond control of the person affected by the sentiment) points in like manner to voluntary activity in promoting the interest of the party referred to by services which the beneficiary can either concede or withhold at choice. The substance of the prohibition is in my opinion generally clear; and the condition is accordingly sufficiently determinate and so is effectual, notwithstanding the possibility that it may leave unregulated ab ante a margin of possible activities as to the permissibility of which there may require to be a subsequent determination.

The condition being, in my opinion, an effectual condition, I decline to consider whether the introduction of such a prohibition into the settlement indicates caprice on the part of the truster. There is nothing in the adjusted statements of fact which would enable the Court to determine such a question; while the law of Scotland, apart from its sometimes illusory provision of legitim, allows to parents an unrestricted liberty, however capriciously exercised, in disposing mortis causa of their estates. Again I find nothing to indicate a trespass against "good conduct" in a condition which restrains a merely capricious affection, while not interfering with any tie of blood.

I am very clearly of opinion that the second branch of question 2 ought to be answered in the affirmative. It is true that the settlement speaks from the date of the truster's death, and speaks, moreover, as from that date in the terms in which it has now been interpreted by the Court. It is only from the date of this decision, however, that intimation has been made to the second party of the settlement as containing, as part of it, the condition as to the validity of which parties have hitherto been in dispute. Although the terms of the settlement do not put the second party to an election as between alternative provisions, they none the less confer on her an option, and call on her to make a choice, between a benefit subject to a clog and release from that clog with renunciation of the benefit. Before a beneficiary can be asked to make such a choice, just as in the case of a more typical election, I am of opinion that she is entitled to be informed as to the alternatives with all the fullness of detail to which she would have been entitled in the circumstances which more usually have introduced the equity.