Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Robert Hutchison and Others v. James Skelton and Others [1856] UKHL 1_Paterson_659 (18 July 1856)
URL: http://www.bailii.org/uk/cases/UKHL/1856/1_Paterson_659.html
Cite as: [1856] UKHL 1_Paterson_659
[New search] [Printable PDF version] [Help]
SCOTTISH_HoL
Page: 659↓
(1856) 1 Paterson 659
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 97
v.
Subject_Legacy — Provisions to Children — Vesting — Fee and Liferent — Trust — Personal Bar — Discharge —
A father, subsequent to the death of his daughter M., executed a trust settlement, directing his trustees to set apart for each of his daughters, (including M.,) and their children respectively, in fee, the sum of £1500, and declaring that such sums as had been or might be paid by him to any of them, and were vouched by receipt, or entered to their debit in his books, should be held in pro tanto of provision. Previous to the date of his settlement, the truster had disponed to M. heritable subjects valued at £1000, and that sum he entered to her debit in his books, as “to account of patrimony.” On the truster's death:
Held (reversing judgment), That this £1000 was to be deducted from the provision to M.'s children, as the will obviously intended, that equal legacies should be given to all the daughters. 1
The late John Hutchison, on 16th December 1840, executed a trust disposition and settlement, by which he conveyed to his wife and his sons, as trustees, his whole property, heritable and moveable. The trust purposes were—1
st. For payment of debts. 2
d. That the trustees should “secure to Mrs. Elizabeth Morrison, my spouse, in liferent, for her liferent use only, the dwelling house of Cairngall, with the garden;” and also deliver over to her, as her own absolute property, the whole household furniture, &c., with a free liferent annuity of £150, by equal portions, at Whitsunday and Martinmas, beginning the first half year's payment at the first of these terms which shall happen six months after my death, for the half year succeeding, and so to continue during her life. “
Tertio, That they shall set apart and secure to each of my daughters, Mary, Elizabeth, Katharine, Ann and Jean Hutchison in liferent, and their children respectively in fee,
_________________ Footnote _________________
1 See previous report
15 D. 570;
25 Sc. Jur. 340.
S. C. 2 Macq. Ap. 492;
28 Sc. Jur. 670.
Page: 660↓
The truster died in March 1843. He was predeceased by his daughter Mary, wife of George Arbuthnot, who died in 1837, leaving five children.
In October 1823, the truster had executed a disposition, by which, on occasion of her marriage with Mr. Arbuthnot, he conveyed to his daughter Mary, and her heirs and assignees, a house and grounds in Peterhead, which he had purchased for £800, (to which he added a piece of garden ground,) and on which house he afterwards expended some money in improvements. Of same date with the disposition, Mrs. Hutchison granted an acknowledgment to her father, by which she declared that the conveyance had been made to her “in consideration of the value of the sum of £1000 to account, or in part of patrimony.” The truster also made, in his own hand writing, an entry in a book titled, “Account of money advanced my children at different times as patrimony, as per their receipts,” under an account titled, “Mary Hutchison, my eldest daughter,” in the following terms:—“1823, Oct. 29. To her receipt for house and ground as described in the receipt, value to account of patrimony, £1000.”
The present was an action of multiplepoinding and exoneration at the instance of Hutchison's Trustees, the competing claimants being Robert Hutchison and others, the sons of the truster, and the children of Mary Hutchison.
The truster's sons claimed the residue of the estate after payment to each of the daughters, or their representatives, of £1500, under deduction from Mary Hutchison's share, of £1000 paid to her on her marriage. And they pleaded, that, at any rate, three of her children who had granted discharges to the trustees on payment of £100 each, and Sibilla Arbuthnot, who had for two years accepted of interest on j£100 as the amount of their provisions, were thereby barred from insisting for further payment.
On the other hand, Mrs. Hutchison's four surviving children, and the trustees of the late Mrs. Elizabeth Arbuthnot or Anderson, her fifth child, claimed payment of £300 each in full of their provisions,—those who had granted discharges and accepted of interest, maintaining that, having done so in ignorance of their legal rights, the same formed no bar to their claim.
The Court of Session held that the payment of £1000 was not to be deducted from Mary Hutchison's share.
The pursuers appealed against the judgment of the Court of Session on the following grounds:—
By the sound construction of the settlement, the children and grandchild of Mrs. Mary Hutchison or Arbuthnot are only entitled to claim a balance of £500, inasmuch as it was the intention of the testator, that the conveyance of the house and grounds to his daughter in 1823, on the occasion of her marriage, should be held equivalent to a payment of £1000 of the legacy of £1500 bequeathed to his daughter and her children.
Sinclair v. Sinclair, 15 D. 212; Bankt. Inst. i. 6, 5; Robertson v. Macintosh, M. 9619; Innes v. Jameson, Mor. 11,464; Burnet v. Maitland, Mor. 11,467; Smith v. The Common Agent of Auchenblane,3 D. 1109; Grant v. Anderson, 3 D. 89; Trimmer v. Bayne, 7 Ves. 508; Carver v. Bowles, 2 R. & My. 301; Monck v. Monck, 1 B. & Beatt. 298; Ewan v. Watt, 6 S. 1125.
The respondents supported the judgment on the following grounds:—1. According to the sound construction of the deed of settlement, the special declaration, that any sum advanced to any child or children in the testator's lifetime should be held and accounted as so much of the provision falling to that child, had reference exclusively to the provision of liferent settled upon the testator's children, and not to the separate and independent provision of the fee of the sum so liferented, which was secured in favour of the testator's grandchildren. 2. There are therefore no grounds for imputing the advance or payment of £1000 made to the mother of the respondents
Page: 661↓
Solicitor-General (Bethell), and Rolt Q.C., for the appellant.—This is a question of construction, and comes simply to this:—When a provision was made to Mary in liferent, and her children in fee, was that a provision to Mary? In England it is held, that a provision to a child and her children is a provision to that child, and therefore the one may be deducted from the other. It is not common sense to say, that you can deduct £1000 from the liferent of £1500; you can only deduct it from the capital sum of £1500. There can be no doubt of the intention of the testator, that the sum of £1000 was meant to be deducted from the capital of £1500, for he seems to have treated all his children equally; and if the Court below was right, Mary would receive nearly double the provision of the others. The intention of the testator is everything.— Sinclair v. Sinclair, 15 D. 212. It is not enough to say, that the provisions in the two cases were different, and conferred different kinds of benefit.— Booker v. Allan, 2 R. & My. 270; Kirk v. Eddowes, 3 Hare, 509; Wharton v. Lord Durham, 5 Sim. 297; 3 Cl. & F. 146; Dixon v. Fisher, 6 W. S. 431.
Sir F. Kelly Q.C., and Monro, for respondent.—The provision of a fee and the provision of a liferent are totally distinct legacies, and the one cannot be imputed as part payment of the other. This appears clearly from Dixon v. Fisher, 6 W. S. 431. If the testator had intended the £1000 given to Mary to be deducted from the provision to the children, he would have expressly stated this, as was done in reference to Jane, another of the daughters.
Then, during the argument, the case was likened, and so it is in the printed papers before me, to cases of ademption of legacies. I cannot say that I think that those cases bear much analogy to the present case. They somewhat resemble it, but still they do not at all afford an authority on which a Court of justice could act. Those cases proceed upon this ground—that if a testator makes a will, and gives that which is in the nature of a portion to his daughter, say £5000 to his daughter, for her separate use; or he gives it simply to the daughter, and afterwards, in his lifetime, the daughter marries, and he gives to that daughter £1000, even though he does not give that to her as he had given it by the will simpliciter, but settles it upon herself for her life, and afterwards it is to go to her children, still that must be intended to be taken in satisfaction of what has been given by the will. That affords no analogy to the present case, because the Courts, in this country at least, to which those authorities refer, have not considered that the circumstance of a limited interest, such as an interest for life being given to the daughter, and, after the death of the daughter, an absolute interest being given to the children of that daughter, makes any substantial difference; but they have treated that as a provision for the daughter. I do not think, however, that those cases bear any close analogy to the present, which turns entirely upon the construction of this will.
Now, the will is in these terms:—After directing the payment of debts, and making certain other provisions, “ Tertio, the trustees are to set apart and secure to each of my daughters,” there being five of them, “in liferent, and their children respectively, in fee, the sum of £1500 sterling, to bear interest,” and so on. Then it says no jus mariti is to accrue; “and, lastly, that they shall pay and divide the free remainder and residue of my estate, real and personal, hereby disponed, amongst my sons, equally between them, share and share alike.” Then comes this clause—“it being understood, and hereby specially provided and declared, that whatever sum or sums have already been paid, or may in lifetime hereafter be paid to any or either of my said children, whether sons or daughters, and vouched by receipt or other written document, or entered to their debit in my ledger or other account book, shall be held and accounted (without reckoning interest thereon) as so much of the provision falling to such child or children under this deed of settlement.”
Now, in the case of Mary Hutchison, afterwards Mary Arbuthnot, who died in the testator's
Page: 662↓
What is contended for by the respondents is, that the sum which the testator directs to be deducted from the provision falling to the children under the will, shall be deducted from the life interest, because that which would otherwise be deducted, if not from the life interest, would have to be deducted, not from the provision for the child, but from the provision for the child of the child. Now, in the first place, it is perfectly obvious, that the intention of this will was to give equal legacies to all the daughters, and equal shares of the residue to all the sons. But the intention of giving equal legacies to the daughters would be totally defeated by the construction which has been adopted by the Court below, because, if there had been any daughter who had had £1500 advanced in her lifetime, the consequence would be, that eventually that daughter's family would take £3000, whereas the daughter who had had nothing advanced to her would take only £1500. It is very improbable that the testator should have contemplated such a state of things as that arising.
But further, how is the gross sum which has been advanced in the lifetime to be apportioned and set apart against the life interest of the legacy given by the will? Supposing a sum of £1500 to be advanced in the lifetime, the testator dies, the interest that had accrued due up to the death of the testator is expressed not to be taken into account. Then, take interest at any rate you please,—5 per cent.,—is that to go on, and the daughter to remain unprovided for for 20 years, till the interest for that number of years shall amount to £1500, and then to be let into the enjoyment of the whole? The whole arrangement is so preposterous and inconvenient, that, if there be any possible construction that will not militate against the language used by the testator, I think it is the duty of the Court to arrive at such a construction. Now, is there any such possible construction? I think that which is suggested by the learned counsel for the appellants is a perfectly rational construction. The testator calls it the “provision falling to such child or children.” If a man by his will gives £1500 for his child, to have the benefit of it during her life, and afterwards to go to her children, she being a married woman with a family, is not that legitimately described as “provision falling to children”? It appears to me clear that it is so. The same expression, “portions for children,” has been so construed in England; and I can see no difficulty whatsoever in adopting the same construction upon the language used in this instrument.
Then it is contended, that the codicil raises a difficulty here, because by the codicil in respect of one daughter, namely, Mrs. Hutchison, who had married first a gentleman of the name of Mackay, and afterwards a gentleman of the name of Hutchison, the testator makes a provision that what he has advanced or agreed to advance to her, shall be taken as a portion of the money that is given by the settlement. Then it is said expressio unius est exclusio alterius. But the codicil, when looked at, has clearly no such object. The object of that codicil, I think, was to exclude the notion that the £1000, for which he had given a bond, and which he had not paid for, did not come within the description of sums already paid or advanced in his lifetime. It was a memorandum that he would advance it at a future time.
Mrs. Hutchison, or those claiming in right of her share, might well have argued upon the construction of this will, and, I think, perhaps successfully argued, if he had not made such a codicil—you must construe this strictly, this is not a sum of money which has been paid or advanced to me in my lifetime, and consequently the provision for deduction does not apply. It is not necessary to argue, whether that could not have been successfully contended; certainly it might have been very plausibly contended, and therefore it was a prudent thing for the testator to exclude all doubt upon that subject, by making the codicil which he made.
Upon the whole, although one is anxious to hear the matter fully out, in deference to the opinions of the learned Judges of the Court below, I cannot say that I feel any reasonable doubt upon the subject. Therefore, I think that, they having come to a wrong conclusion, I must move your Lordships that the interlocutors be reversed.
Solicitor-General.—I would suggest that the order should be drawn up in this form:—“Reverse the interlocutors appealed against; direct expenses to be repaid; repel the pleas and claim of the respondents to the whole sum of £1500; find expenses in the Court below due to appellants; and find that the residuary legatees are entitled to have the previous advance of £1000 made by the testator to his daughter Mary in her lifetime, deducted from the provision of £1500 settled on the children of Mary.” The Court below gave costs against us, and we have these to pay. That ought to be altered.
Lord Chancellor.—That is, the property paid the costs?
Solicitor-General.—The daughters received interest upon the sums now found due to them for
Page: 663↓
Lord Chancellor.—I think there should be no costs.
Interlocutor reversed with a declaration, and cause remitted.
Solicitors: Appellants' Agents, Jollie, Strong, and Henry, W.S.—Respondents' Agents, J. B. Douglas, W.S.