United Kingdom House of Lords Decisions

After various proceedings had taken place the Lord Ordinary ordered the appellants to consign in the Bank of Scotland the sum of 4,000 l. sterling, with interest, or, in their option and without prejudice to the pleas of the parties, to grant and lodge in process a security therefor over their heritable estate. The money, including interest, amounting to about 5,000 l., was accordingly lent out, and the bond and disposition in security bore that the same “quoad both principal and interest is granted in trust, for behoof of the aforesaid Margaret Dixon otherwise Fisher, and her children, and for the said Daniel Fisher her husband, according to their respective rights and interests either at common law or under the said deed of settlement and codicil of William Dixon the elder, or otherwise as may be determined in the action of multiplepoinding herein-before recited, and subject at all times to the orders of the said Lord Ordinary or of the Court, to be pronounced in said process; the rights and interests, and pleas of the whole parties being reserved to them entire, in terms of the before-recited interlocutor.”

The Lord Ordinary ordered cases to the Court, and issued the following note:—

“The question whether, in the case of a bequest by a father of a certain sum to a child for his life-rent use allenarly, and to the children

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of that child in fee, the declaration that the bequest shall be in full of all the child's legal claims imports a condition on the compliance with which the right of fee as well as that of the life-rent is dependent, is one which appears to the Lord Ordinary to be attended with considerable difficulty. The case of Watt v. Ewan, 10th July 1828, founded on by the pursuers, is certainly very nearly in point, and on the strength of that decision the Lord Ordinary was at first inclined to give judgment in favour of the pursuers; but in the present case, independently of the expressions in the settlements, marking perhaps more clearly the testator's intention, there is this additional distinction, that the provision is in favour of the testator's daughters in life-rent for their life-rent use allenarly, and ‘their children in fee,’ while in the case of Watt v. Ewan, the provision was, “in favour of my son John and his present wife, and longest liver of them, in life-rent, for their life-rent use of the interest thereof, and the fee thereof to the children procreated between them, share and share alike;”—which expressions might perhaps be held to denote a right in the wife and children of the specified marriage more absolute and unconnected with the rights of the father than that created by the general expressions employed in Mr. Dixon's settlement. As the point is of some importance, and as the report of the case Ewan v. Watt does not afford the means of ascertaining the precise grounds upon which it was decided, the Lord Ordinary has thought it most advisable to order cases. The multiplepoinding and count and reckoning depending between the present defenders and the mother of the pursuers include

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the whole funds of the testator; the very sum now pursued for is lent out on security in virtue of an order made in those processes; and the Lord Ordinary understands that the determination of the pursuers' mother to claim legitim or to accept the provisions of the settlement will depend on the result of those processes. But the question, how far the right of fee in the children is in any way conditioned on that determination, admits of being separately discussed; and that course seems to have been sanctioned by Lord Cringletie's interlocutor of the 26th May 1829, “repelling the preliminary defence that this action ought to be dismissed, or remitted hoc statu to the multiplepoinding,” and appointing the parties to prepare a record.”

The Second Division of the Court directed the parties to lay the revised cases before the other Judges, in order to obtain the written opinion of their Lordships, “whether the claim made on the part of the pursuers be or be not well founded.”

The Lords President, Balgray, Gillies, Craigie, Corehouse, and Moncreiff, concurred in the following opinion:—

“We have carefully considered the disposition and settlement of the deceased Mr. William Dixon, dated 11th April 1817, as also the codicil thereto annexed, dated 15th March 1820.

By these deeds it is declared, that the provisions to his daughters shall not be subject to the jus mariti or right of administration of their husbands, or liable to be attached for their debts or deeds, “but shall belong exclusively to my daughters in life-rent, for their life-rent use allenarly, and to their children in fee, and shall be so secured at the sight of my said

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sons or the survivor of them.” Also in the codicil conferring an additional provision it is declared, “That the said present, like the former provision, shall not be subject to the jus mariti, deeds, curatory, or administration of any husbands whom my said daughters have or may marry, but shall, along with the said former provision, be lent out and secured on good security, at the sight and in the name of my sons or survivor, along with Mr. Nathaniel Stevenson, writer in Glasgow, as trustees for the use and behoof of my said daughters in life-rent allenarly, and their children in fee, the fee being to be divisible among the children by any joint deed of the parent or the survivor.” We consider these clauses of great importance, and we think that the grantor by these deeds created two separate and distinct estates, the one of life-rent and the other of the fee, and that these estates were in no ways dependent upon one another. We are the more inclined to be of this opinion, from the circumstance of trustees being appointed to hold the fee separately for behoof of the children, independent of the right of their parents. We therefore cannot see upon what grounds in justice the children can be deprived of the fee by any act or deed of the life-renters, who are entitled to manage their own property as they think fit, without control on the part of their children. The expressions made use of in Mr. Dixon's settlement, and to which the defenders refer, are to be considered with great caution, particularly when direct and positive rights are created. Where the intention of a grantor is clear and explicit, the inductive cause is of little importance in testamentary deeds. Whatever were

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Mr. Dixon's intentions in a certain event, yet, as that certainly has not taken place, without an express declaration it cannot be maintained that the daughters, by claiming any thing due to them, either as a share of the goods in communion at their mother's death or in the name of legitim at their father's death, could deprive their children of a right of fee with regard to which their mother had no interest whatever but that of life-rent. If Mr. Dixon had intended to make the renunciation of those rights a condition of the grant of the fee he ought to have expressed his intention in a more direct and explicit manner. Under these circumstances we conceive it to be improper for a court to extend a condition from presumed intention. In the present case we think that neither of the parties could make the condition of the other better or worse. Upon the whole, we incline to think that the case of Watt v. Ewan, decided 10th July 1828, is very nearly in point, and ought to be followed as a precedent. It may be observed that the plea of hardship, which has been stated on the part of the defenders, is not altogether just or correct. The grantor's heirs will enjoy the life-rent of the grandchildren's provisions during the life of their mother, and so annually diminish the claim.”

Lord Fullerton:—

“I concur in the foregoing opinion. If the present could be viewed as a mere question of probability, very plausible reasons might perhaps be given for the supposition that the testator intended to make the right of fee, as well as that of life-rent, dependent on the surrender of the legitim by the daughters. But I do not think that the deeds contain words capable of supporting such an

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intention. The effect of the deeds clearly is to create two distinct and independent rights, that of life-rent in favour of the daughters, and that of fee in favour of the children of those daughters. Then follows the declaration, “that the provisions above mentioned shall be in full to each of my daughters, their husbands, children, or assignees, of all they could ask or claim in and through my decease legally or conventionally, or any other manner of way.” Now, I conceive it would be outstepping the limits of legitimate construction to connect with the surrender of legitim not only the provisions of life-rent, created in favour of the daughters who had a right of legitim, but the provision of fee in favour of the children who had no such right, so as to raise by implication a condition affecting the bequest to the children. The question seems to be substantially the same with that raised and decided in the late case of Ewan v. Watt; and though there may be some slight difference in the expression of these deeds, I do not think that the difference is such as to warrant the application of a different principle to the present case.”

Lords Mackenzie, Medwyn, and Newton concurred the following opinion:—

“In this case the testator declares, that the provisions are granted as “provisions to my daughters, and for the love and favour which I bear to them.” The mode adopted of providing the daughters is by giving them sums of 4,000 l. each. These sums, to be sure, are directed to be laid out on securities for them in life-rent allenarly, and their children natis aut nascituris in fee. But still the whole grants of these sums were certainly viewed as

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provisions on the daughters, insomuch that even in the case of any daughter predeceased it is expressly mentioned, that the children of that daughter are to receive it ‘as coming in place of their mother,’ and powers over the fee, at least of one half, if not of the whole,—powers of great importance,—are reserved to the daughters or their husbands. The whole of each provision is manifestly viewed as unum quid provided in favour of each daughter; nor is there any thing absurd, but the contrary, in making provisions for daughters by a destination such as is here done, which reserves the full benefit of it for themselves and their children.

2. The deed then bears, “that the provisions above mentioned shall be in full to each of my said daughters, their husbands, children, or assignees, of all they could ask or claim in and through my decease, legally or conventionally.” The husbands, children, or assignees are evidently mentioned only as persons to whom the daughter's right might pass. The substance of the clause relates to daughters, that is, that these provisions were to be in full of their claims, legal and conventional. The idea of applicando applicandis is admissible. The husband, children, and assignees could obviously have no right, legal or conventional, of their own, not derived through the daughter that was the wife, mother, or cedent. The provision then may be read as if the words had been simply, “that these provisions shall be in full to my said daughters, of all they could ask or claim in and through my decease.”

3. The daughter Margaret Dixon (Mrs. Fisher) refuses to give up and claims her legitim, and she

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repudiates the provision, which she has full power to do; yet her children claim the fee of the provision, as being settled on them independently of her or her deeds. We think the answer to this claim good, that the manifest intention of the testator was that the provision as unum quid should have effect as a provision on his daughter, and as a satisfaction of his daughter's claim, legal or conventional, and not otherwise; and therefore, if it cannot have this effect, it cannot have effect at all. He never intended it, nor has he expressed it, as a separate independent legacy on his grandchildren. This construction, we think, is certainly agreeable to the true intention of the testator, and we are not aware of any principle by which that intention can be defeated and a result produced which the testator never intended. The case of Ewan does not appear to us to be one in which the circumstances were precisely similar to the present. In that case there do not appear to have been the same grounds for certainty that the provision was viewed as one provision on the child whose legitim was to be discharged, and on the want of this evidence of intention we believe the decision of the case must have rested. In this case we see no room for doubt on that subject.”

The Court, on resuming consideration of the case, with the opinions of the consulted Judges ^*, pronounced, on the 24th Nov. 1831, the following interlocutor:—