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Cite as: [1813] UKHL 2_Dow_73
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SCOTTISH_HoL_JURY_COURT
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(1813) 2 Dow 73
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS.
During the Session, 1813–14.
53 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION.
No. 7
v.
WILL.
Testator gives 3000 l. portion to each of three daughters, the interest to be paid them in the mean time, and the principal on the event of their marriage with the consent of his widow and one or more of his trustees; and in case of their marrying without such consent, the principal sum of the daughter so marrying to go, not to the wife and husband, but to the children of the marriage; and in case of their dying unmarried, then the principal sum to revert to his estate; the residue of which he gave to his son. After
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testator's death, the son assigned his contingent interest in the portions to one of the sisters. The mother and trustees died. Held that, as those, whose consent to the marriage of the daughters was required by the will in order to entitle them to their portions in that event, were dead, and as the son was the only other person interested in the portions, and as he had assigned his interest to one of his sisters, that sister was entitled to uplift her own portion immediately, and the portions of her other sisters with their consent, and to close the trust.
Will of A. Grant.—Gives his estates to trutees, the survivor, and representatives of survivor, upon trust to pay 2000 l. to Thomas Dyer, husband of his eldest daughter, as part of her marriage portion, 1000 l. thereof having been before paid.
Archibald grant, Esq. of Pittencrief, who usually resided in London, and was resident there at the time of his death, died in 1784, having previously made his will, of which the material parts, as read by the Chancellor, are stated below, with the sections numbered for the convenience of reference, and, as far as possible, to prevent the necessity of repetition. The testator, by his will, “gave all his property, real and personal, to trustees, (therein named,) their executors, administrators, and assigns, upon trust that they, the survivor of them, and executors and administrators of the survivor, should convert the whole of his personal estate into ready money, place the same in the public funds,” &c.; which money, and all other his estates, they, and the “ survivors and survivor” of them, were to stand possessed of, and interested in, upon trust, for the purposes of his will: and, after reciting that he had agreed to give Thomas Dyer, husband of his eldest daughter Maria Letitia Dyer, 3000 l. as her marriage portion, and that 1000 l. thereof had been already paid, and that the other 2000 l. was to be paid alter his own and his
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2000 l. each to his other three daughters, the interest only to be paid them, and the principal on their marriage with consent of their mother and trustees.
Sect. 1.—“I give and bequeath to each of my three younger daughters, Amelia Charlotte Grant, Anne Grant, and Elizabeth Grant, the sum of 2000 l. a-piece, with legal interest on the same from the time of my death. The said principal sums of 2000 l. to be vested in the said trustees and executors before mentioned, in trust, for the use and behoof of each of the said three daughters respectively, from the time of my death, as before expressed, until the time of their respective marriages, if such an event shall happen; when they, or such of them shall be married, ( but with the special consent and approbation of my said wife during her life, and of one or more of the said trustees and executors, first had and obtained,) and the husband of such daughter or daughters so married shall be entitled to demand, uplift, receive, and grant discharges, for the said respective sums of 2000 l. each, with legal interest thereof. But in case one or either of my said daughters shall marry, at any time after my decease, without having first asked and obtained the consent and approbation before directed, then the said daughter so married, or the husband of such daughter, shall not be entitled at any time to demand, uplift, and receive, the said respective principal sum or provision of 2000 l.; but the same shall remain vested in the said executors and trustees, in trust, for the use and behoof of the child or children of such marriage, if any such there shall be; and the said daughter, and the husband of such daughter, shall only be entitled to demand and receive the legal interest annually arising from the said provision, from the time of my death aforesaid.”
But in case of their dying unmarried, the principal to revert to his estate.
Sect. 2.—“And in case any one or more of my said daughters shall remain unmarried and single after my death, and not be married at all, then the said daughter or daughters shall only be entitled to receive the annual interests arising from their respective provisions, after deducting such proportions thereof as shall hereafter be directed to be paid and applied for their maintenance and education; that is to say, I hereby desire and direct that my three said younger daughters, or such of them as shall
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Farther sum of 1000 l. each to the three unmarried daughters, on same terms as the former 2000 l.
Sect. 3.—“I also give and bequeath to each of my said three younger daughters the farther sum of 1000 l. a-apiece, from the time of my said wife's decease, to be paid to such of them, or to the husband of such of them as shall be married, within one year from the time of her death, with legal interest thereon from that time, while it shall remain unpaid; but the said farther principal sum of such daughter as shall remain unmarried shall remain vested in the said trustees before named during her or their respective lives, and shall, at her or their deaths, revert to and become a part of my said estate, in the same manner as is before expressed respecting the said 2000 l. before directed; and such daughter so remaining unmarried shall be only entitled to receive the annual interest of the said respective sum of 1000 l. from the decease of my said wife during her or their natural lives.”
The testator then went on to give an annuity of 250 l. to his wife, and several small legacies to various persons, &c. &c.; and then the will proceeded thus:—
Residue of testator's estate to go to his son, but the interest only to be paid him till he attained the age of 31, or married; and in either of these events to have the principal.
Sect. 4.—“It is my farther will and desire that, after deducting and reserving the several legacies, provisions, and reserved sums, left and bequeathed to my said four daughters, the sum of 1000 l.
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Word or construed as if it were and. If son died under 31, and unmarried, residue to go to daughters.
Sect. 5.—“And in case my said son, Alexander Grant, shall happen to die under the age of 31 years, or unmarried, then my will is, that my said executors and trustees shall stand possessed of, and interested in, my said residuary estates and accumulations thereof, in trust for my said four daughters, and the survivor or survivors of them, and the respective heirs, executors, administrators, and assigns of such surviving daughter or daughters: and in case there shall be but one surviving daughter, then in trust for such surviving daughter, her heirs, executors, administrators, and successors, the share of my eldest daughter, Maria Letitia Dyer, to be paid, assigned, or made over to her or her said husband, Thomas Dyer, for her use and benefit, within one year after the death of the said Alexander Grant; and the share of the survivor or survivors of my said three younger daughters to continue vested in the said trustees, from the time of the death of their said mother, Anna Maria Grant, if she shall survive her son, the said Alexander Grant, and in case she shall so long remain a widow, in trust until such time as they, or either of them, shall be married; when such share or proportion shall be paid, assigned, and made over to her or them, or the husband of such daughter or daughters so married, within one year after the death of my said wife, in case she shall survive her son, the said Alexander Grant, as aforesaid.”
And if daughters die without issue, property to go to M. E. Grant.
Sect. 6.—“And in the event of the said Alexander Grant's dying without having attained the age of 31 years complete, And Unmarried, as is before expressed, then, and in that case, it is my will, and I desire that my said residuary estates, and accumulations thereof, shall be charged and chargeable with the payment of the farther clear yearly sum of 100 l. to my said wife Anna Maria Grant, &c. &c. And in case my said son shall die, as aforesaid, and my said four daughters shall all die without being married, or such of them as shall be married, and die without leaving issue of their bodies, then my will is that my said
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The testator then appointed his trustees, together with his wife, executors of his will. Two of the trustees (Colquhoun Grant, Clerk to the Signet, and Richard Mollesworth, of the Navy Pay-Office) and the widow accepted the trust. The widow and the trustee, Colquhoun Grant, having died, the management devolved entirely on Mr. Mollesworth, who acted till the son attained the age of 31, and then paid over to the son the whole of the testator's property, with the exception of 9000 l. reserved to answer the bequests to his unmarried sisters.
April 19, 1797. Action of multiple-poinding.
A creditor of the son then arrested in Mr. Mollesworth's hands the son's contingent interest in the 9000 l.; and, in 1797, Mr. Mollesworth raised an action of multiple-poinding and exoneration, (in the nature of a bill of interpleader,) before the Court of Session, against the testator's children and the son's creditor. Mr. Mollesworth died in 1800, and, on petition by the Appellants, a factor was appointed to carry on the trust and insist in a supplementary
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Sept. 6, 1803. Anne Grant acquires her brother and his creditor's interest, and brings an action of declarator, which is conjoined with the other action.
During the progress of this action, Anne Grant, one of the unmarried sisters, by agreement with her brother, in consideration of a certain advance, and by compromise with the arresting creditor, acquired both their interests in the 9000 l. portion, and brought an action of declarator, concluding, that, in virtue of this transaction, she ought to be declared entitled to her own 3000 l. absolutely, and to her two unmarried sisters' portions in case they died unmarried, &c. This was conjoined with the process of multiple-poinding.
In 1806, Captain Grant, the son, died unmarried.
In the course of the proceedings, which it is unnecessary for the present purpose to state at length, the Appellants (Anne Grant and her two unmarried sisters) contended that Alexander Grant, the residuary legatee, having attained his age of 31 years, he and his assigns became entitled, under the will in question, to the whole residue of the testator's estates; which, of course, included the legacies given to the Appellants, in the event of their dying unmarried.
That the Appellant, Ann Grant, having come in place of her brother, the residuary legatee, she and the other two Appellants were the only persons who had any interest in the continuance of the trust; and they were entitled, with joint consent, to uplift the trust funds de præsenti, and to grant valid and effectual discharges and acquittances for the same to all concerned.
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There were only two parties who could have any right to oppose the claim of the Appellants; namely, the widow and trustees of the will, and the testator's son as residuary legatee. But the widow and the other trustees of the will being all dead, the trust, so far as they were concerned, was already at an end; and the Appellant, Anne Grant, who had the sole right of the residuary legatee, expressly concurred in the Appellants' claim. For what purpose, then, or on whose account, was this trust to be still continued? The Appellants combined in their persons every right which could, in any possible contingency, exist over the trust fund; and if they were not allowed to call up the same, and to dispose thereof at pleasure, then was this trust continued without any end or object, and for no useful purpose whatever.
It might be said, perhaps, that they could not discharge their contingent claims until they married, because, till then, their respective provisions were not due, and as soon as the marriage took place, the wife could not grant any discharge without her husband's consent. But there was a fallacy in this argument; for the husband, taking his wife, must take her with all her debts and obligations whatever; and if she should have received her portion, and granted a discharge, which, of course, she warranted against all contingencies, then this obligation passed with the rest of her debts over upon her husband, and bound him just as it bound her.
Vide will, sect. 5.
The Respondents, (Mrs. Dyer, eldest daughter of the testator, and her children,) on the other hand,
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It was answered that the word or, ( vide sect. 5,) on which the Respondents' argument depended, was evidently inserted by mistake for the word And.
The Court of Session pronounced the following interlocutor:—
May 24, 1808. Interlocutor of the Court appealed from.
“ and therefore repel her claim as residuary legatee; find that in hoc statu the portions of Misses Amelia Charlotte Grant, Anne Grant, and Elizabeth Grant, being three thousand pounds sterling each, cannot be uplifted, but must remain vested in terms of the trust until the death or marriage of each of them, reserving the claim of the parties to the residuary fund which may arise in the event of any of these ladies deceasing unmarried.”
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From this interlocutor the Appellants lodged their appeal.
Romilly and Leach (for Appellants;) Adam and Richards (for Respondents.)
Dec. 15, 1813. Judicial observations.
Will of A. Grant.—Gives his property to trustees.
To pay 2000 l. to Thomas Dyer, husband of testator's eldest daughter.
( Vide ante, sect. 1.) 2000 l. to each of his three unmarried daughters, given by immediate words.
The 2000 l. to be paid on their marriage with the consent of the wife, if living, and one or more of the trustees.
If such consent could now be required, the portions could not he immediately uplifted.
“ I give and bequeath to each of my three younger daughters, Amelia Charlotte Grant, Anne Grant, and Elizabeth Grant, the sum of 2000 l. a-piece, with legal interest for the same from the time of my death.”
(Here their Lordships would observe that this was an immediate bequest to the ladies themselves. The testator then proceeded to give directions as to the 2000 l., so given to each of his daughters, by immediate words.) “ The said principal sums of 2000 l. to be vested in the said trustees, &c. until the time of
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The consent confined to the trustees personally, and not extended to the representatives of the survivor.
But the question was, Whether such consent could now ever be given? or, in other words, Whether the consent was confined to the executors and survivor of them personally, or meant to be extended to the representatives of the survivor? The general course of the decisions went to confine this power of giving or withholding consent to those who were personally named, and not to extend it to representatives. If then the Appellants were not entitled to uplift the portions, he was inclined to think that it could not be on the ground that any consent might be wanting to their marriage that could now be given, but on the ground that the husbands were to receive the principal of the portions, and not the daughters,—a question which he would consider by and by.
Sect. 2.
If the three daughters, having the interest of their portions, the principal to be paid them on their marriage, and in the event of their not marrying to fall into the residue, add to their own title that of the residuary legatee, they have then the absolute title, and may uplift the principal immediately.
The testator then proceeded:—
“ And in case any one or more of my said daughters shall remain unmarried” &c.
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( vide ante, sect. 2.) These were certainly very strong words, to show that it was the intention of the testator to suspend immediate payment in any event that might happen. But then this was to be considered, that, if the principal sums must either go to them on their marriage, or, in the event of their not marrying, fall into the residue, and the residuary legatee made over his interest to them, they were entitled to the interest of the portions under the will, and to the principal as having added to their own title the title of the residuary legatee. A supposed case had been put, of a sum of money bequeathed to A. in the event of his attaining the age of 31, and in case he did not attain that age, then the sum to fall into the residue; and it had been said that the Court could not order the legacy to be paid to A. till he attained the age of 31, even with consent of the residuary legatee. He did not concur in that opinion. As the only other person interested was the residuary legatee, the result was that the money might be paid as much sooner as he chose; and if he agreed that it should be paid to A. at the age of 21, the Court had nothing to do with that.
Sect. 3.
Farther sum of 1000 l. each to the three daughters, with same directions as fore given specting 2000 l.
The will then proceeded thus:—
“ I also give and bequeath to each of my said three younger daughters the farther sum of 1000 l. a-piece, from the time of my said wife's decease, to be paid to such of them, or the husband such of them as shall be married, within one year from the time of her death, &c.; but the said farther principal sum of such daughter as shall remain unmarried shall remain vested in the said trustees, &c. and shall,
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at her or their deaths, revert to and become part of my said estate,”
(their Lordships would notice the words ‘ said estate,’) “ in the same manner as is before expressed, ” &c. ( Vide ante, sect. 3.)
Annuity of 250 l. to his wife.
Sect. 4.
The testator then proceeded to give an annuity of 250 l. to his wife, and the use of his household goods, with an option to his son to take them in the event of his marriage (without reference there to any age) in her lifetime, upon payment of 500 l. to the widow. And then he gave some small legacies, 200 l. to his wife, &c.; and then disposed of the residue in this way:—
“ It is my farther will and desire, that after deducting and reserving the several legacies,” &c. ( vide ante, sect. 4.)
The residue to go to his son, the interest only to be paid him till he attained 31, or married; and, in either of these events, the principal.
Their Lordships would here observe that the residue of the testator's estate was given to his son, A. Grant, but with directions that the interest only should be paid him till he attained the age of 31, or married; and on his attaining the age of 31, or being married, “ then the trustees were to pay and make over to him, &c. all such unappropriated sums of money, &c. as the testator should die possessed of, &c.; excepting always such sums of money as are above reserved and appropriated for the uses and purposes before expressed.”
Sect. 5.
Then followed a very material passage. Subsequent words might revoke prior words, but where the meaning was clear before, the revocation must be very clear in order to be effectual, and they must look at the context to ascertain from the whole what was the real meaning of the testator. “ ( Vide ante, sect. 5.)
Word or construed as and in wills, where requisite to give effect to intent of testator.
The will inconsistent, unless the word or is construed as if had been and.
If the will had stopped there, independent of the subsequent passage, it would still be very difficult to say that it ought not to be construed, as a will might be, so as that the word or should be considered as if it had been and, where such appeared from the context to be the meaning of the testator. The former part of the will gave the title absolutely in the events either of attaining the age of 31 or marrying: and then followed the passage, “ that in case the son died under 31, or unmarried, the residue was to go to the daughters;” the effect of which latter clause, unless the word or should be construed as if it were and, would be this, that though by the former clause the son was to have the residue either on attaining the age of 31, or marrying, whichever should first happen; by the latter clause he might have it neither in the one event nor the other. Though he attained the age of 31, he could not have the residue till he married; and though he married, unless he also attained the age of 31, the residue must go over.
Sect. 6.
Then followed the words:—
“ And in the event of the said A. Grant dying without having attained the age of 31 years complete, and unmarried, as is before expressed; then it is my will, that my said residuary estates shall be charged with the payment of a farther yearly sum of 100 l. to my said wife, &c.; and in case my
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aid son shall die as aforesaid,”
(which, referring to the last antecedent, meant in case he died under 31, and unmarried,) “ and my said four daughters shall all die without being married,” &c. ( Vide ante, sect. 6.)
This latter clause showed, that, unless the son died both under the age of 31, and unmarried, the residue was not intended by the testator to go over; and this was consistent with the first part of the will. Then the intermediate clause must be construed in the same way as if the word or had been and; and, by this construction, the son, when he attained 31, had the absolute title against all subsequent claimants.
The unappropriated part of the portions of the daughters included in the residue given to me son; the words “ excepting always,” &c. only extending to the several sums as far as they were appropriated to other purposes.
Then it was said that the residue given to the son was minus the portions—these portions having been expressly excepted. But the exceptions extended only to the sums appropriated to other purposes mentioned in the will; and whatever remained undisposed of (including all the interest that was undisposed of in the 9000 l. portions) fell into the residue.
Effect of the will was to give the whole residue to the son on his attaining the age of 31 or being married.
Then the effect of the will on the whole was, that it excluded all claim to the residue after the son attained the age of 31, (which he did,) or married, whichever first happened; and if the interlocutor meant any thing else, the legal effect of the will had been misunderstood.
Legacie vested in trustees for behoof of daughters, with interest payable to daughters in the mean time, and principal if married with consent of trustees. Trustees all die, and (nobody existing to give or withhold consent) no objection on that ground to the immediate payment of the principal to the daughters.
But then it was said that the portions must remain vested in terms of the trust till it was seen whether the daughters, or any of them, should marry with the consent required in the will: and if the
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When the daughters got the title of the residuary legatee, they were entitled to have their portions immediately. If the son was living, and they had released to him, the release would bind any future husband.
This reduced the matter to the only other question, Whether the interlocutor was right in finding, “that in hoc statu the portions could not be uplifted by the daughters, but must remain in terms of the trust till the death or marriage of each of them?” He originally thought it was right, and it was difficult to think that such was not the intent of the testator: but then consider what was the effect of the will and the subsequent events. The effect was, that before the ladies got the title of the son the interest of the 9000 l. belonged to the daughters, and the principal to the son in the event of their dying unmarried; but when the daughters got the title of the son, it was impossible not to say that they were entitled to receive the 9000 l. unless somebody else might be entitled to it independent of any thing the daughters could do in the mean time. Here was an immediate gift to the daughters, and then a trust; and it had been argued, that if the brother had been living, and they had released to the brother, he would have the right against everybody else—even against the husbands—and he thought he would. When they, then, acquired the interest of the residuary legatee, in his judgment, this property was absolute in them, and they might uplift it immediately; and so far the interlocutor was wrong.
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He was authorised to state that this opinion was fortified by the authority of his noble and learned friend, ( Redesdale,) who had attended at the hearing, and who had felt less difficulty in coming to this conclusion than he had.
Judgment.
Interlocutor altered conformable to the above opinion.
Solicitors: Agent for Appellants, Berry.
Agent for Respondents, Mundell.