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SCOTTISH_HoL_JURY_COURT
Page: 203↓
(1858) 3 Macqueen 203
REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.
No. 12
v.
Subject_Double Portions — Satisfaction. —
Case in which (affirming the decision of the majority of the Court of Session) it was held by the House (Lord Cranworth dissenting), that the presumption established in England against double portions does not exist as a canon of construction in the law of Scotland.
Per the
Lord Chancellor : In the law of Scotland it does not appear that any general antecedent presumption exists against double portions; p. 232.Per the
Lord Chancellor : If a father gives his child the same amount of money by two different instruments, unless it appear either expressly or by necessary implication that he really intended the one sum to be in satisfaction of the other, the law of Scotland will not presume that he meant the one to be in satisfaction of the other; p. 238.Semble, however, that where the prior provision was obligatory, as by bond constituting an actual debt in favour of the child, a subsequent provision will by the law of Scotland be deemed, not a bounty, but a satisfaction of the debt, upon the principle debitor non præsumitur donare; p. 232.
Per
Lord Wensleydale : I conceive that by the law of Scotland there is no primâ facie presumption against double portions; p. 258.Per
Lord Wensleydale : I am not satisfied that there is any rule of the law of Scotland, that a settlement on a daughter by a marriage contract is presumed to be a satisfaction of a previous provision, unless that provision be ex obligatione; p. 259.Per
Lord Cranworth : The law of Scotland presumes against duplication, and, in doing so, corresponds with the law of England; p. 242.Page: 204↓
Per
Lord Cranworth : If a parent having left by his will 10,000 l. to his daughter, on her marrying afterwards settles 10,000 l. upon her, it would, in ninety-nine cases out of a hundred, defeat his intention, if she were allowed to take the two sums; p. 246.
Subject_Costs. —
How far, when a judgment is affirmed, the question being one of admitted difficulty, costs are to be disallowed as against the Appellant; p. 264.
The proceedings originated in a summons of multiple-poinding (interpleader), brought by George Marshall Darley, James Hill Kippen, William Kippen, and John James Alston, as trustees under the trust disposition and settlement herein-after more particularly mentioned.
From the pleadings it appeared that by antenuptial contract of marriage, dated 2nd August 1815, between William Kippen of Busby, deceased, and Marianne Alston, he, the said William Kippen, undertook to provide and pay to the children of the intended marriage, the following sums; namely, “if one child, 2,000 l.; if two, 4,000 l.; if three, 6,000 l.; if four, 8,000 l.; but which sums if there should be more than one child, he reserved power to divide; and, failing division, it was declared that the division should be equal.”
These provisions w ere to be in full of “all legitim, bairn's part of gear, or any other claim which they might by law be entitled to.”
The contemplated marriage took place, and of it there were ten children. Five were daughters.
On the 17th June 1848, by antenuptial contract of marriage between Marianne (one of the daughters), and John James Alston, the said William Kippen became bound to pay to certain trustees 5,000 l.; viz., 1,000 l. at Martinmas then next, and 4,000 l. at the end of twelve months after his death; and these provisions were by the deed agreed to be accepted by the said
Page: 205↓
On the 5th of May 1849, by antenuptial contract of marriage between Christina (another of the daughters) and William Shaw, the said William Kippen became bound to pay to certain trustees provisions of the same amount, and payable in the same manner, as in the marriage contract of Marianne aforesaid, with the like clauses declaring acceptance of these provisions in lieu and satisfaction of the other like claims as mentioned in the contract of Marianne, the 17th June 1848.
On the 17th July 1849 the said William Kippen executed a trust disposition and settlement (a), whereby he conveyed his whole heritable and moveable estate to trustees for the following purposes:—
1st. To pay debts and expenses; 2nd. To convey his lands of Busby to his youngest son at majority, under burden of a jointure to the truster's widow of 400
l. per annum, and of certain other annuities; 3rd. To convey his lands of East Kilbride to his son William, and to pay him 2,000
l., under deduction of previous advances
(b); 4th. To set apart 4,000
l. for each of his daughters Margaret, Jane, and Elizabeth, “and for the lawful issue of such of them as may have died, leaving such issue, as coming in place and as in right of their deceased parent; and to
_________________ Footnote _________________ (
a) This instrument, being of a testamentary nature, was often by the Law Lords called a
will. See their opinions,
infrà. (
b) See
infrà, p. 224.
Page: 206↓
Page: 207↓
On the 14th December 1850, by antenuptial contract of marriage between the Margaret aforesaid and Hugh Fleming Edmiston, the aforesaid William Kippen bound himself to pay to certain trustees 5,000 l. as a tocher for the said Margaret, payable, 1,000 l. thereof at Whitsunday 1851, and the remaining 4,000 l. at the first Whitsunday or Martinmas twelve months after his death, the interest, after these periods of payment, to be held “in trust for the said Margaret Kippen in liferent, for her liferent alimentary use allenarly, exclusive of the jus mariti or right of administration of the said Hugh Fleming Edmiston, or any future husband;” and to “hold the said principal sum of 5,000 l. in trust for the children of the marriage equally among them, if more than one, share and share alike;” declaring that if there should be no issue of the marriage at its dissolution by Margaret Kippens death, or if such issue should all die before majority without lawful issue, “then, and in either of these events, the said tocher of 5,000 l. should revert to the said William Kippen, and his heirs and assignees whomsoever,” and be payable, if he should predecease his daughter Margaret, to the sons of his son William and their issue.
This contract of the 14th December 1850 did not say whether the tocher of 5,000 l. was, or was not, to be in satisfaction of previous provisions.
Subsequently to this last contract William Kippen added two codicils to his trust disposition and settlement; the one codicil dated 6th January 1852, restoring the 4,000 l. to each of Jane and Elizabeth, in place of the respective annuities of 120 l., and reducing the provisions to William and George in
Page: 208↓
Having bound himself by being a party to these three contracts, and having executed the trust disposition and settlement with codicils thereto, all as aforesaid, William Kippen departed this life in January 1853.
In the multiple-poinding, Mr. and Mrs. Edmiston made the following claims: In the first place, they claimed 800 l. as the tenth share of the 8,000 l. secured by the antenuptial contract of 2nd August 1815; secondly, they claimed 4,000 l. as the provision secured to Mrs. Edmiston and her family by the trust disposition and settlement of 17th July 1849; and thirdly, they claimed 4,000 l. as balance due, at Whitsunday 1854, of the 5,000 l. secured by the antenuptial contract of the 14th December 1850.
These claims were resisted by the residuary legatees, who maintained that the provisions secured to Mr. and Mrs. Edmiston by the contract of the 14th December 1850, satisfied not only the 800 l. under the contract of 2nd August 1815, but also the 4,000 l. under the trust disposition and settlement of the 17th July 1849.
The
Page: 209↓
His Lordship explained his Interlocutor in the following reasoned note:—
I. As to the 800 l. The Lord Ordinary is of opinion that this sum must be held to be satisfied by the much larger provisions conferred by Mr. Kippen on Mrs. Edmiston and her family by her contract of marriage.
The 1,000 l. agreed to be paid by Mr. Kippen in his lifetime to Mrs. Edmiston's marriage contract trustees was of itself more than sufficient to extinguish the 800 l. payable after Mr. Kippen's death under his own marriage contract, supposing him to leave no need of division. Mr. Kippen had power to settle this 800 l. upon his daughter and her issue in liferent and fee, and consequently to create a trust, without which it could not have been so settled. He had also power, with the assent of her and her husband (implied in their becoming parties to the contract), to declare the liferent to be alimentary, and exclusive of the jus mariti and administration of the husband, even if his power to impose these conditions for his daughter's benefit would not have been implied in his reserved power of apportionment itself. Nor can Mrs. Edmiston's issue by any subsequent marriage be said to be unduly prejudiced, for Mr. Kippen might have given her the full fee of the 800 l., and consequently he might with, if not without, her consent dispose of the fee in the way he did by her contract of marriage. The maxim debitor non præsumitur donare is directly applicable to this branch of the case, as well as various authorities too familiar to require to be here cited.
II. The question how far the gratuitous provision contained in Mr. Kippen's trust settlement is to be held satisfied or superseded by Mrs. Edmiston's marriage contract provision is a question of some delicacy, if not of difficulty.
The cases of Grant, 19th November 1840, and Nimmo, 29th June 1841, although they have an important bearing upon this case, can neither of them be said to be directly in point, nor indeed can any case of this kind be expected to be precisely like another. Mr. Kippen's relative position and course of dealing with reference to his family, and the fair construction of his deeds, afford the chief elements for decision.
The first of Mr. Kippen's five daughters was married in June 1848, and the second in May 1849. In each of their marriage contracts he became bound to pay to trustees 1,000 l. at the next term of Martinmas after the date of the contract, and 4,000 l. at the end of twelve months after his death, the whole 5,000 l. to be invested on heritable security, and the interest to form an alimentary provision for the daughter, free from her husband's debts and deeds, and the
Page: 210↓
fee to go to the children equally, failing any different apportionment by the parents. These provisions were declared to be in full of all claims under Mr. Kippen's own contract of marriage, and of every other provision, legal or conventional. By the trust settlement, which followed in about two months after the second contract, Mr. Kippen directed his trustees to invest and secure for behoof of each of his unmarried daughters, Margaret (afterwards Mrs. Edmiston), Jane, and Elizabeth, 4,000 l., of which each was to have the liferent allenarly (a), exclusive of the jus mariti and administration of any husband she might marry, and the fee to go to her issue, share and share alike, just (in substance) as had been done with reference to the 4,000 l. (as well as the 1,000 l.) provided to each of his married daughters in their marriage contracts. He then assigns the reason why the married daughters were to have no more, by saying it was ‘ in respect’ he had already provided for them by their contracts of marriage, while, as regarded the unmarried daughters (to neither of whom he had as yet provided the additional 1,000 l.), he simply declared that their provisions were to be in full of all legal claims.
Thus far, undoubtedly, there is good evidence of Mr. Kippen's intention that there should be substantial equality among his daughters, and more particularly that the daughters then unmarried should not have more than the daughters who had been married.
Did Mr. Kippen, then so entirely change his mind when he became a party to Mrs. Edmiston's marriage contract as to resolve to give her and her family nearly double what he had given to her married sisters and their families? The Lord Ordinary cannot think so.
By Mrs. Edmiston's marriage contract Mr. Kippen provided to her and her family precisely the same sums, and limited and destined them substantially in the same way, as he had done in the marriage contracts of her two sisters, that is to say, he became bound to pay to trustees 1,000 l. at the next term after the date of the contract, and 4,000 l. at or about the lapse of twelve months after his death, all in name of tocher, and to be invested for the alimentary liferent allenarly of the daughter, exclusive of the jus mariti and administration of the husband, and for the children of the marriage, equally, in fee. He thus dealt with Mrs. Edmiston and her husband upon their marriage just as he had dealt with Mrs. Alston and Mrs. Shaw, and their husbands, upon their respective marriages.
No reason, indeed, is surmised why he should have done differently. Mrs. Shaw had been married within less than a year after Mrs. Alston, and Mrs. Edmiston was married in about eighteen months after Mrs. Shaw, while two of his daughters remained numarried, and his wife was still alive, so that there was no
_________________ Footnote _________________
( a) Only.
Page: 211↓
Not only, however, are the provisions in Mrs. Edmiston's marriage contract similar in amount and conditions with the provisions in the marriage contracts of Mrs. Alston and Mrs. Shaw, but there is substantial identity, both in amount and conditions, between the 4,000 l. in Mrs. Edmiston's marriage contract and the 4,000 l. provided to her and her family by the trust settlement.
In both cases the 4,000 l. is to be invested and secured for Mrs. Edmiston in liferent, exclusive of the jus mariti and administration of her husband, and for her issue, share and share alike, in fee. The slight variation in the term of payment and in the mode of investment (which by the contract is restricted to heritable property) introduced, obviously from motives of convenience and expediency, are altogether immaterial. The only variations deserving of notice are, 1st, that, failing issue, Mrs. Edmiston by the settlement had a power to test on the 4,000 l. which is not conferred by the contract; and, 2nd, that the fee was provided to her issue generally by the settlement, whereas by the contract it is provided to her issue of that particular marriage.
The first of these variations, however, except in so far as it connects with the second, does not seem to go deep into the question whether Mr. Kippen intended the marriage contract provisions to supersede the provisions in the settlement, while the second occurred in the case of Grant, and there seems no sufficient reason for giving it greater weight here than was given to it there.
The circumstance that, after the date of the marriage contract, two codicils were executed, altering the settlement in some respects and confirming it in all others, also occurred in the case of Grant. Indeed, upon the assumption that Mrs. Edmiston's 4,000 l. provision under the settlement had been satisfied or superseded by the provisions in the marriage contract, this confirmation was quite right. Nor can the fact that Mr. Kippen afterwards, before his death, saw cause to limit his two daughters who remained unmarried to an annuity, materially affect the fact that, when he became a party to Mr. and Mrs. Edmiston's marriage contract, his object was to place all his married daughters upon a footing of equality. As to his sons, they were obviously provided for on a different scale from the daughters, so that no safe analogy can be drawn from their provisions, whether residuary or otherwise.
The strength of Mr. and Mrs. Edmiston's case, therefore, really comes to rest upon the peculiarity that in each of the marriage
Page: 212↓
But here the observation occurs, and to the effect of accounting for this difference it is thought to be a perfectly legitimate observation, that this last marriage contract was prepared by a different man of business from the two previous contracts, which he probably never saw, and if he knew, as it must be presumed he did, that such a clause was in the circumstances unnecessary, the fact, of which he was ignorant, that another man of business had inserted such a clause in these other contracts, could of course afford neither reason nor inducement for him to do the same.
The writer of the previous contracts appears to have inserted the clause merely ob majorem cautelam, for he made it applicable not only to conventional, but to legal claims, although these last were already excluded by the terms of Mr. Kippen's own marriage contract, to which the clause makes express reference. The Lord Ordinary thinks that the one branch of the clause would, in the circumstances, have been as superfluous in Mrs. Edmiston's marriage contract as the other, although it might have been prudent enough to have inserted it to avoid questions such as have now been raised. The presumption that a father, in giving a tocher to his daughter in her marriage contract, brings into view all he means to give her, in order to obtain the best possible terms from the contracting husband, may be a mere primâ facie presumption, to be taken simply as evidence of intention along with the whole other circumstances; but still it is an important presumption, which must occur, with less or more weight, under the marriage contract of every daughter to whom the father thereby provides a tocher; and giving it its due weight there, along with the other circumstances, the Lord Ordinary really cannot doubt that it would be doing violence to, and not fulfilling, Mr. Kippen's intententions, if Mrs. Edmiston and her family were to receive 9,000 l. (or, in another view, 9,800 l.), while each of her married sisters and their families receive only 5,000 l.
The First Division of the Court of Session, in reviewing the Lord Ordinary's Interlocutor, came to be equally divided in opinion. Therefore a “hearing in presence” (a) before the Judges of both Divisions took place, and on the 3rd July 1856 the following decision was pronounced:—
“The Lords having heard the Counsel for the parties, and considered the opinions
_________________ Footnote _________________
( a) See 18 Second Series of Scotch Rep. 1137.
Page: 213↓
On the occasion of this decision, the following opinion was delivered by the Lord President. His Lordship was in the majority:—
The
Lord President .—We are not pressed to decide on the claim under the marriage contract of 2nd August 1815. We must gather whether Mr. Kippen intended to give and has given to Mrs. Edmiston the provision in the trust settlement in addition to that contained in the contract of marriage, or whether the last was in satisfaction of the provision in the trust settlement. There are material differences between the disposal of the sums given in the contracts of marriage of Mrs. Alston and Mrs. Shaw, and those in the contract of Mrs. Edmiston. In particular, in the latter there is no discharge and renunciation of former bequests as is contained in the other two contracts; and there is this further difference, that if there should be no issue of that marriage, then the provision was to revert to Kippen's own residue of the estate; whereas, in the contracts of the other daughters, there was a discharge and renunciation of the other provisions, and there was not that limitation of interest in the sum given under the marriage contract. The provision in their contracts of marriage is not limited to the interest of the issue of that marriage, but is to benefit the issue of any subsequent marriage; and there is a power of testing and disposing of the sum. Mrs. Edmiston, therefore, was at no time upon the same footing with these other two daughters. In point of fact, there is also a difference between the provisions in the trust settlementPage: 214↓
and the provisions in the contract of marriage, for the provision in the settlement goes to the issue of any marriage, and there is also given the power of disposal of it. Now, these are material differences. Now, as to intention. The first thing that strikes me is, that in the case of Mrs. Edmiston I find what does not occur in the case of the other daughters, viz., that there are two deeds existing in her favour. The question is, how we are to read these two deeds, which contain each of them provisions in her favour, but different in character and value, and not declared to be the one in place of the other? Then, again, there is this circumstance, which I think of importance in a question of intention, that while we have the contracts of marriage of several of his daughters before us, and while in the case of Mrs. Edmiston's marriage the provision is less favourable for her than the marriage provisions of the other married daughters, there is a marked omission in her marriage contract of the discharge of prior bequests, which is inserted in the others. On the other hand, while that provision is less favourable to the wife, it is more favourable to the issue of that marriage; and probably it is more favourable to them, because the husband dealt more liberally with the issue of that marriage than in the other cases. Still the daughter's children, by any other marriage, might be unprovided for, and there was nothing in her power to leave to them. All these circumstances rather point to the conclusion that these inequalities in Mrs. Edmiston's position indicate some purpose or intention relative to her which requires to be satisfied in some other way. This indication is answered by this trust deed and settlement in her favour, the continued subsistence of which, I think, is fairly accounted for by the peculiarity of her position in other respects.
But further, there is the circumstance that Mr. Kippen made an annual revision of his settlement, and in making it he had always before him the clauses in favour of Mrs. Edmiston; yet, while he was altering the position of the other daughters, to whom as well as to Mrs. Edmiston the clause applied, he did not make any alteration in the position of Mrs. Edmiston in reference to her interests under that trust deed. The matter was pre-eminently brought under his notice that he had omitted to do so in the marriage contract, and it is likely that while he was making alterations for the other daughters, he would have made it for her too. These circumstances indicate intention on his part to deal differently with her from any of the others.
It is said that the presumption is against a double provision. There is, in certain cases, such a presumption, and that presumption is more or less strong, according to circumstances. I do not know that it is peculiarly strong when the one provision is in a will and the other in a marriage contract. But it is said that the presumption is that a father brings forward everything at the marriage of
Page: 215↓
his daughter, in order to secure the best terms he can from the future husband. I do not know that this rule is not too broadly stated. It only means that there is a presumption that he brings forward everything that he has in contemplation of doing for her— all that he intends to bind himself to do, but not all that he may do. But if the object be to get the best terms he can for his daughter, that was plainly not a strongly operative motive here, for by doing less for Mrs. Edmiston he got more for her than for the other daughters. Then allusion is made to the inequality that would be introduced among the daughters by sustaining the double provision in favour of Mrs. Edmiston. I am not moved by that consideration. It struck me at first, but I attach no importance to it now. It is difficult to figure a case in which there is more plainly an intention of operating inequality than in this case, apart from this double provision. In one reading of this settlement there are three grades among five children. There are two married daughters, two unmarried daughters, and Mrs. Edmiston. They are all on a different footing, and I do not see any greater reason for making two daughters better than Mrs. Edmiston, than for making her better than two daughters. There is no stronger reason for putting her in the middle of that gradation than for putting the two daughters there. It is impossible, in any way, to get a rule of equity in this case, and therefore motives of equity are excluded by the very nature of the case. It is very difficult to find rules by which we are to construe the intention of parties towards their family, and therefore, although we have no reason for inequality here given, we have the fact and the intention of inequality plainly given. Therefore, I think that none of these considerations can give us the clue to the intention of Mr. Kippen to exclude the provisions which he had made in favour of Mrs. Edmiston under the trust deed and settlement.
The
Lord Ordinary , in his note, I think, has overlooked some considerations. He says Mr. Kippen “became bound to pay to trustees 1,000 l. at the next term after the date of the contract, and 4,000 l. at or about the lapse of twelve months after his death, all in name of tocher, and to be invested for the alimentary liferent allenarly of the daughter, exclusive of the jus mariti and administration of the husband, and for the children of the marriage, equally in fee. He thus dealt with Mrs. Edmiston and her husband upon their marriage, just as he had dealt with Mrs. Alston and Mrs. Shaw and their husbands, upon their respective marriages.”Now, this is a mistake. He did not deal with Mrs. Edmiston in the same way as Mrs. Alston and Mrs. Shaw. The provision is quite different. It is a provision in favour of the issue of that marriage alone, and which reverted to his own residue, in the event of there being no issue of the marriage.
Page: 216↓
The same is again repeated by the Lord Ordinary. “Not only are the provisions in Mrs. Edmiston's marriage contract similar in amount and conditions with the provisions in the marriage contracts of Mrs. Alston and Mrs. Shaw, but there is substantial identity, both in amount and conditions, between the 4,000 l. in Mrs. Edmiston's marriage contract, and the 4,000 l. provided to her and her family by the trust settlement.”
Now, that also, I apprehend, is a mistake—because the 4,000 l. provided by the trust settlement is in a totally different condition from that provided by the marriage contract. Suppose that Mr. Edmiston were to die, and Mrs. Edmiston were to marry, and have another family—in that case, and if that family were claiming that 4,000 l. under the settlement, the fee being given to them by the deed, it would have been very difficult to have resisted their claim. That could not have happened in regard to any of the other daughters.
The
Lord Ordinary says,—“That the only variations deserving of notice are, 1st, That failing issue, Mrs. Edmiston, by the settlement, had a power to test on the 4,000 l., which is not conferred by the contract; and, 2nd, That the fee was provided to her issue generally by the settlement, whereas, by the contract, it is provided to her issue of that particular marriage.” Now, these are important alterations. I differ from the Lord Ordinary in holding that they are substantially the same. The interests are different; and the interest is given in the one case to a class of heirs not given in the other. It is a right and destination to parties in the one case who are excluded in the other case.The cases that have been referred to were, first, Grant, 19th November 1840, which underwent a great deal of discussion, and which came nearest to this of any or those referred to. But, in the first place, there was in that case a declaration that the sum was in full of the patrimony; and, in the second place, the contract did not stand out in contrast with the contracts of marriage of other daughters. Then, in the case of Nimmo, the contract was prior to the settlement, and seems to have been decided on the principle of debitor non præsumitur donare.
The remark was made, that the omission or introduction of the clause containing a discharge and renunciation of previous bequests was to be attributable to the fact of two different agents using different styles in preparing the deeds. It would be dangerous to introduce that as a rule of decision; for why are we to hold that to be the act of the agent, more than the act of limiting the fee to the children of that particular marriage? Where can we stop? But I can see a reason for it in the whole history of these deeds; and I am not disposed to regard it as an unimportant consideration.
The only other remark which I have to make is in reference to the English cases. I am always apprehensive when I deal with
Page: 217↓
such cases that I may be dealing with matters which I am not master of. But in reading those cases to which we have been referred, and more particularly the case of Durham—in which the other cases have been referred to, and cited by Lord Brougham, and also cited by Lord Lyndhurst, who differed from Lord Brougham—this much I think I can discover, that in England there are certain rules by which the intention of parties is construed, which rules have no place with us; and it is very plain that, in every country where courts of law are compelled to construe deeds of settlement of this kind, in which parties have not clearly expressed their intention, they must adopt general rules which may aid them in doing so. But these rules are founded, not on any abstract principle of law, but on the presumption of intention of parties; and then, again, that presumption must be deduced from the habits of the country—from the prejudice of the party in making the provision—from the style of the deeds, and the different states of society which may exist in one place and not in another,—so that it is very difficult to draw from the rules of any country, aid in construing deeds made in another country, for the feelings, the habits, and the language in which the intention is expressed are different, and the rules adopted in one country may therefore be totally inapplicable in another. And further, seeing that some of the English Judges have been complaining of the length to which these rules have driven them in compelling them to conclusions which they do not think in accordance with the intention of parties, we therefore must have great hesitation in adopting any of them. In the case of Durham, Lord Brougham held that the rule in favour of ademption is not absolute, but may be overcome by the circumstances of the case; and his decision went on this ground, that the provisions were in extinction of two previous sums; but it was not said to be in extinction of another, and therefore he held that the party had different intentions regarding them. But again, Lord Lyndhurst says that the argument does not move him in the least, and the reason he gives is, that it was necessary, as far as related to debt, that the provision in satisfaction of it should be in terms expressed; but as far as related to a provision by will, it was not necessary, because that effect was produced by the operation of law. Now, that principle cannot be applied to our law, for the very opposite is ours; and yet this is the principle on which the case of Durham was decided. Nor am I satisfied that I know exactly what is the meaning of the word ademption. But I see that in England there are rules which have no place with us, and which may materially influence the English decision. Therefore, in this case, where there are such great differences between the condition of the sums given, and where the position of Mrs. Edmiston was so different from that of the other daughters, in whatever view one can take it—where the party was so frequently revising the deeds, and had this matter so frequently Page: 218↓
brought under his notice,—when I look to all these considerations, I have come to the conclusion that Mr. Kippen did not mean the provision in the marriage contract to come in place of the provisions in the settlement, which he meant to the last to keep up and belong to Mrs. Edmiston; and therefore, I am inclined to concur in the opinion of the majority.
The Appeal to the House was against the Judgment of the full Court.
The Appellants were the residuary legatees of William Kippen; while, on the other hand, Mr. and Mrs. Edmiston and their son, and the trustees of the trust disposition and settlement, were the Respondents.
Mr. Rolt and Mr. Anderson were heard for the Appellants.
The
The arguments used, and the authorities cited, are fully examined and discussed in the following opinions.
Lord Chancellor's opinion.
The
My Lords, in this case the proceedings originated in a summons of multiple-poinding brought at the instance of the Appellants, the acting trustees of William Kippen, to have it found and decreed that under a certain trust disposition and certain marriage settlements they were only bound to pay to Mrs. Margaret Edmiston, the daughter of William Kippen, the sum expressed and contained in her marriage contract, which was to be taken by her in satisfaction of all rights and claims which she could demand or become entitled to through the decease of her father, either by settlement or in any other manner.
The
_________________ Footnote _________________ (
a) Mr. Inglis. (
b) Lord Chelmsford. His Lordship's opinion was in writing.
Page: 219↓
Against this interlocutor a reclaiming note was presented to the First Division of the Court of Session by the Respondents, Mr. and Mrs. Edmiston and their son. The Judges of the First Division Court being equally divided, the case was sent for hearing to the whole Court, on the question whether the Interlocutor reclaimed against should be adhered to. The case having been heard by the whole Court, a majority, consisting of six of the Judges, were of opinion that the provisions in the settlement were payable to Mrs. Edmiston and her children in addition to those contained in her marriage contract, while a minority of three Judges were of a contrary opinion, and in favour of affirming the Lord Ordinary's Interlocutor.
The case having again been brought before the Inner House, two Judges adopted the views of the majority of the consulted Judges, and two those of the minority, so that in the result your Lordships will find that eight of the learned Judges were of opinion that Mrs. Edmiston was entitled to the benefit both of her own marriage contract and of her father's trust disposition or settlement, and five of the same learned body were of an opposite opinion, and the following Interlocutor was pronounced:— “The Lords having heard the Counsel for the parties, and considered the opinions of the consulted Judges in conformity therewith,
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Against this Interlocutor appeal is now made to your Lordships. In order to determine the question involved in this Appeal, which, from the great difference of opinion existing upon it, your Lordships' will consider to be one of some difficulty, it will be necessary to examine very carefully the different settlements and other instruments upon which the solution of it depends.
By the marriage contract of William Kippen and Marianne Alston, and to which the father of Marianne was a party, which is dated the 2nd August 1815, certain provisions were made for the children of the marriage, to which alone it is important to draw attention. By that marriage contract William Kippen binds and obliges himself to provide and pay to the children of the marriage the following sums at the first term of Whitsunday or Martinmas after his decease, with the lawful interest thereof from the time it becomes due until it is paid, viz.:—If one child, 2,000 l.; if two, 4,000 l.; if three, 6,000 l.; if four, 8,000 l.; but which said sums, if there be more children than
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And then the marriage contract contains this clause:—“And the foresaid provisions stipulated in favour of the said children shall be in full to them of all legitim, bairns' part of gear, or any other claim which they might by law be entitled to at the decease of the said William Kippen, or at the dissolution of the marriage, all of which is hereby discharged, save and except what further provisions the said William Kippen may of his own free will make in their favour, and save and except, in the event of his dying intestate, their claims to a share of his estate and effects; and the said Marianne Alston and William Kippen hereby accept of the foresaid stipulations by the said John Alston, in favour of the said William Kippen, in full of any share or provision which the said Marianne Alston is entitled to by the contract of marriage betwixt the said John Alston and Mary Dennistoun.”
There were ten children of this marriage, five sons and five daughters, the daughters being Marianne, Christina, Margaret, Jane Dennistoun, and Elizabeth.
Marianne married John James Alston, and Christina married the Rev. William Shaw; and upon the occasion of their respective marriages, marriage contracts were prepared by one of their brothers, George Kippen; the contract on the marriage of Mr. and Mrs. Alston being dated the 17th June 1848, and that upon the marriage of Mr. and Mrs. Shaw on the 5th
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The provision for the children of the marriage is in these terms:—“The said John James Alston binds and obliges himself to provide and pay to the children of the marriage the following sums of money at the first term of Whitsunday or Martinmas after his decease, with the legal interest thereon from the time it falls due till actually paid, viz.: —If one child, the sum of 1,000 l.; if two, the sum of 1,500 l.; if three, the sum of 2,000 l.; if four or more, the sum of 2,500 l.; but which said sums, if there be more children than one, the said John James Alston shall be entitled to divide among them and their issue in such sums and proportions, and in liferent or fee, as he shall think proper, by any deed under his hand; which failing, the same shall be divided equally among them, the issue of such of them as may be dead succeeding to their father or mother's share.” “And on the other part, as the said William Kippen” (it is recited) “is desirous of securing upon his said daughter in liferent, for her liferent use allenarly, and upon her children of the present marriage in fee, whom failing, upon her own heirs or next of kin in fee, the sum of 5,000 l.
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Then it is declared, “that in the event of there being no children of this marriage, the foresaid sum shall go and belong to the nearest of kin of the said Marianne Kippen, which foresaid provisions in favour of the said Marianne Kippen stipulated by the said John James Alston, she, with consent foresaid, hereby accepts of in full of all terce, jus relictæ, half or third of moveables, and every other claim which she or her next of kin might or could claim at the dissolution of the marriage, all which she hereby renounces and discharges.
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After the marriages of the two daughters, Marianne and Christina, and on the 17th of July 1849, William Kippen executed a trust disposition and deed of settlement of his property. After appointing trustees, he directed them, in the first place, to pay to his “son, William Kippen, the sum of 2,000 l. sterling at the expiry of twelve months after” his death, “but under deduction always of such sum or sums as I may have advanced to him or for his behoof, according to a statement thereof in my ledger.” And then, in the next place, he directed and appointed his trustees, “to set apart from the first and readiest of my means and estate, real and personal, not otherwise specially destined, the sum of 4,000 l. sterling for each and every
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William Kippen afterwards, by an instrument called his first codicil, dated the 10th January 1850, revoked and recalled the bequest to his two daughters, Jane Dennistoun and Elizabeth, and instead thereof he appoints them “an annuity of 120 l., exclusive of the jus mariti of their respective husbands in the event of their marriage, and of their debts and deeds, and the diligence of their creditors.” And then he says, “And with these alterations and additions I hereby approve and confirm my said deed of settlement in all other respects.”
After the execution of this first codicil, Margaret married Mr. Edmiston, and by her marriage contract, not prepared as those of her sisters by their brother, but to which William Kippen, the father, was a party, dated 14th December 1850, Edmiston obliges himself to pay her a jointure of 150 l., and provides and secures to the children of the marriage his whole estate, heritable and moveable, “and these provisions are to be made in full satisfaction to her of all terce of lands, half or third of moveables,” or anything else which she might claim by reason of her marriage. And then William Kippen, on his part, “for
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And then it declared “that in the event of the dissolution of this marriage by the death of the said Margaret Kippen without issue, or in the event of there being issue of the marriage at her death all of whom shall die before attaining the age of 21 years without lawful issue, then and in either of these events the said tocher of 5,000 l. shall revert to the said William Kippen and his heirs and assigns whomsoever; and in the event of his death before the said Margaret Kippen, then the said trustees or their foresaids
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Your Lordships will observe that there is no such clause in this marriage contract as that which is contained in the marriage contract of Marianne and Christina, that Margaret and her husband accept of the provisions by William Kippen, secured by the trust, in full of every provision “whether legal or conventional, competent to be made against the said William Kippen or his means and estate, or his heirs or successors after his death.”
After this marriage contract, William Kippen made two other codicils, one dated on the 6th of January 1852, and the other on the 7th of January 1853; by the former he restored to his daughters Jane and Elizabeth the 4,000 l. which he had given to them under his trust disposition, he revoked the legacy of 2,000 l. to William, and reduced by 2,000 l. the legacy of 6,000 l. that was given to George; and then the codicil states, “and with the above alterations I do hereby confirm my said trust disposition and deed of settlement in all other respects.” And by the latter codicil he again took away the 4,000 l. to his two daughters, and left them with their annuities of 120 l., and added these words, “and with these alterations I hereby approve of and confirm my deed of settlement in all other respects.”
My Lords, upon all these different instruments and writings the question arises, whether the provision made for Mrs. Margaret Edmiston in her marriage contract was intended to be an addition to the benefit which was given to her by her father's trust disposition, and also to that which she was entitled to under
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This latter proposition is strongly contended for by the Appellants, who assert that by the law of Scotland the word “tocher,” ex vi termini, or any provision made by a father upon his daughter's marriage without the use of that word, is presumed to be in extinguishment of all subsisting claims which the daughter has on her father's estate, and that no words of discharge or satisfaction are necessary to give this effect to the deed. And they maintain that the law of Scotland, like the law of England, presumes against double portions to children, and that this presumption requires to be rebutted by proof to the contrary. The Respondents, on the other hand, insist that there is no such presumption in the law of Scotland; that every case of this description is one entirely of intention, depending upon its own circumstances, and governed by no general rule.
My Lords, in this country the leaning or presumption against double portions is settled by a long course of decisions, and though the rule may have been characterised as an artificial one, and there may be found occasional expressions of disapprobation of it by some Judges, and of regret that it should ever have been established, yet it is too firmly fixed as a canon or rule of construction in our law to be lightly departed from. Whether there is a similar rule of presumption in Scotland is a question upon which, unfortunately, the greatest diversity of opinion prevails.
To show your Lordships how little assistance upon this essential preliminary to the correct adjudication of the present case can be derived from the judgments of the learned Judges, it will be sufficient to select some of the strongest and most decisive expressions of each class of opinions, as to the existence or non-existence
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On the other hand, Lord
Ardmillan (who agreed in the result with the
Lord Justice Clerk that there was no ademption in this case) says, “I am, however, not
_________________ Footnote _________________ (
a) Vol. i. p. 324.
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Page: 232↓
In the law of Scotland it does not appear that any general antecedent presumption exists against double portions.
Where, however, the prior provision was obligatory— as by bond—constituting an actual debt in favour of the child, a subsequent provision will by the law of Scotland be deemed a satisfaction of the debt, upon the principle debitor non præsumitur donare.
In this unfortunate conflict of opinions amongst the learned Judges, your Lordships are left without the aid of your natural guides in the law which it is their duty to administer, and are compelled, from such materials as the writings of the Scotch Jurists and the reported decisions of the Scotch Courts supply, to form your own judgment on this leading question. My Lords, after a very careful consideration of all these authorities, I have been led to the conclusion that there is no satisfactory proof that the general presumption contended for by the Appellants exists as a canon or rule of construction which is to be arbitrarily applied in the first instance to the construction of deeds of provision for children, and which must prevail unless it is rebutted by proof of a contrary intention. I do find a rule of presumption of a more limited description, by which cases respecting children's portions have been sometimes governed, and by which they are to be explained, and which is expressed in the well known formula, “ debitor non præsumitur donare.” This is so far from corresponding with the rule of the English Courts that it will be found that, although in them the presumption is in favour of the ademption of a legacy by a portion, and of the satisfaction of a portion by a legacy, yet with regard to the discharge of a debt by a legacy, their leaning or presumption is rather in a contrary direction.
The importance of ascertaining the rule which is to be applied in this case will justify a closer examination of the subject.
It appears from the text writers upon the law of Scotland, that until a comparatively recent period provisions for children were not made by trust dispositions
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But it was asserted in argument that, with respect to a settlement by a father upon his daughter in her name, whether made by the name of tocher or otherwise, there was a rule which invariably prevailed in the Scotch law, to presume it to be in lieu of all former provisions. Various authorities were adduced, which, when examined, do not appear to bear out the proposition to the unqualified extent to which it was asserted. In Bankton's Institutes (a) it is said, “Rights granted to children will be understood in implement of the provisions contracted in the marriage articles to them when nascituri, and both will not be due; for in these cases the design of the father is evidently to exoner himself of the prior obligations.” In this passage, your Lordships will observe that the learned author is dealing solely with provisions in obligatione. In Stair's Institutes (b) it is said, “A tocher in a contract of marriage was found to be in satisfaction of all former provisions, though it did not so express;” and Young's case is referred to, which will be afterwards more particularly mentioned, where the prior provision was also in obligatione.
_________________ Footnote _________________
( a) B. 1, t. 6.
( b) B. 1, t. 8, s. 2.
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But a passage from Erskine's Institute (a), cited by the Appellants' Counsel, goes the whole length of the proposition for which they contend, for it is there stated without any qualification, “that a settlement to a daughter in a marriage contract is presumed to be granted in satisfaction or solution of all former provisions, though it should not bear the words in satisfaction, because provisions granted by fathers in marriage contracts are generally intended to comprehend the whole estate that is to be expected by the husband from the wife or her father in name of tocher.” But these general expressions used by Erskine on the subject of presumption must be understood with limitation, as was said by Lord Fullerton in the case of Grant v. Anderson (b):—“In all the cases in which the principle laid down by Erskine was applied, the prior provision had been in obligatione, and the judgment was put expressly upon the maxim debitor non præsumitur donare.” And upon a careful consideration of all the cases which were cited from the Dictionary of Decisions (c), between the pages 11,361 and 11,474, your Lordships will find that they are almost all of them resolvable into the same principle.
In the case already mentioned, of
Grant v. Anderson, the language of Lord
Mackenzie confirms this view of the previous authorities in the strongest manner. He says, “I cannot find one case in which a provision by will not obligatory was held to be satisfied by a provision in a contract of marriage.” It is true that the
Lord Ordinary in that case speaks of the decisions as having established the presumption contended for in the most unqualified terms. After stating that the leaning of the Scotch law from an early period in the construction of successive testamentary bequests of the same amount to the same
_________________ Footnote _________________ (
a) B. 3, t. 3, s. 93. (
b) 3 Sec. Ser. 97. (
c) Morrison's Dictionary of Scotch Cases.
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It appears, therefore, that no authority can be adduced in favour of the general presumption founded upon by the Appellants in the case of a tocher or provision on the marriage of a child, and that
Grant v. Anderson was the first case in which that question
_________________ Footnote _________________ (
a) 3 Sec. Ser. 94. (
b)
Voce Presumption, 11,474. (
c) Morr. 11,444. (
d) Morr. 11,453.
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Nimmo's case
(a), the only other modern one amongst the Scotch cases cited by the Appellants upon this point, was in fact a case in which the rule of “
debitor non præsumitur donare” was applicable; because there the daughter's marriage contract, which was made by the father, and which was
in obligatione, preceded the provisions made by the father in a trust settlement. The Judges, however, appear not to have decided this case upon any rule of presumption, but, as the
Lord Justice Clerk expresses it, “upon the will and intention of the testator to be discovered from the whole of the deeds to which he was a party.” And Lord
Moncrieff says, “After a full hearing, and examining all the authorities, I can find no unbending rule which can make it indispensable to hold that there is a double provision of the same sum in this case if it be contrary to evident intention, as I think it is. There may be presumptions both ways; but when all the cases are considered together,
_________________ Footnote _________________ (
a) 3 Sec. Ser. 1109.
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This long but necessary examination of the various authorities has led me at last to the conclusion which I have already stated, that there is no such settled presumption with respect to deeds of provision for children by the law of Scotland as is contended for by the Appellants. Nor is it unimportant to ascertain this point clearly, in order to arrive at a satisfactory decision of the present case; because it must be a vital distinction which will essentially affect the conclusion, whether the parties are to start with a canon or rule of construction which is to be arbitrarily applied, and which is to prevail until rebutted by proof of a contrary intention; or whether the intention is to be subjected to no original controlling force, but is to be gathered from the expression of it to be found in the deeds themselves.
If a father gives his child the same amount of money by two different instruments, unless it appear either expressly or by necessary implication that he intended the one to be in satisfaction of the other, the law of Scotland will not presume that he meant the one to be in satisfaction of the other.
My Lords, the question then in this case is, as the Lord Justice Clerk says in Nimmo's case, “truly questio voluntatis.” And how is this will and intention to be discovered but, as he also says, “from the whole of the deeds, and not from taking the terms in which any one of them is conceived, or even two of them”? There is no other mode of ascertaining the
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To apply these observations to the present case, and treating it as one in which the intention is to be sought for in the deeds themselves, there appears to be no one circumstance in the different dealings of the father with his children which clearly shows that he meant to do exactly the same towards Mrs. Edmiston as towards his other daughters. The idea of intentional equality amongst them must be confined to those who married; for, with respect to the unmarried daughters, the father's intention is manifested at the last to place them on a different footing from the rest. And as to the assumed desire of establishing perfect equality amongst the married daughters, I do not know why the difference in their marriage contracts is not to have its due weight, as indicating a different intention respecting them. In the marriage contracts of the daughters Marianne and Christina
(a), there is a
_________________ Footnote _________________ (
a)
suprà, p. 206.
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The codicils which were made after Mrs. Edmiston's marriage contract are not so important for the provisions which they contain as for the fact that on the occasions of making both of them William Kippen must have had distinctly brought to his attention the clause in the trust deposition under which Mrs. Edmiston took the same sum of 4,000
l. as her sisters Jane and Elizabeth. And when the father, by the second codicil, restores his two other daughters to the benefit of the settlement
(b), and takes no notice of Margaret and her marriage contract, as by the settlement itself in the clause immediately following the one giving the 4,000
l. he had noticed
_________________ Footnote _________________ (
a)
suprà, p. 207. (
b)
suprà, p. 207.
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I do not lay much stress upon the revocation of the bequest to one of his sons and the reduction of the bequest to the other, because they were in accordance with the trust deposition, which provided by anticipation for the state of things which occasioned them, and they are only important as contributing to keep the settlement in the father's view.
A similar observation may be made upon the clauses in both of the codicils:—“And with the above alterations I do hereby confirm my said trust disposition and deed of settlement in all other respects.” To give a confirming effect to the double provision by these words would be to beg the whole question. If the benefit to Margaret by the trust disposition were revoked by her marriage contract, this clause could not restore it; and if it were not, it was not wanted to give it continuance. But regarding this as a question of intention to be collected from the deeds, it is impossible to overlook the inference which is to be drawn from the difference between the provisions in Margaret's marriage contract and in the trust disposition.
There is no correspondence of amount in the sums in the two deeds, and the limitations of them are essentially different. The 4,000 l. in the trust deed is given to Margaret in liferent, and afterwards to all her children, with a power to her to dispose of the capital if she died without issue. Under her marriage contract the gift is confined to the children of that marriage, and none of her children by any future
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Lord Cranworth's opinion.
My Lords, this question was twice very elaborately argued in the Courts below, and the result of those arguments has been that the great majority of the
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The case has also been very elaborately argued here, and I have ascertained by communication with my noble and learned friend opposite (a), that he concurs with the Court below, while my noble and learned friend on the woolsack has already very elaborately and ably stated his grounds for coming to the same conclusion.
The law of Scotland presumes against duplication and in so doing, corresponds with the law of England.
I have, my Lords, arrived at a contrary result, but with a great distrust of my own opinion, which, however, it is my duty to state, though it can have no practical effect on the judgment to be pronounced (b). The grounds on which I proceed I will explain shortly to your Lordships. In the first place, I hold, upon the authorities, that there is such a presumption in the law of Scotland as exists in England; and, secondly, I apprehend that if such a presumption exists in the law of both countries, there is nothing in the facts of this case to remove it from the operation of that primâ facie presumption.
When I say I think that presumption exists in the law of Scotland, I am guided to that conclusion by the text writers and by what appears to me the weight of the authorities.
With respect to the text writers, we who are in the habit of assisting here in the administration of Scotch law know that Lord Stair, Lord Bankton, and Mr. Erskine are authorities as text writers to which we refer almost as we should to Coke or Littleton
_________________ Footnote _________________ (
a) Lord Wensleydale. (
b) His Lordship was but one against two.
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In order to bear out that view of the case, I have copied from those text writers the different propositions which they have laid down, which I think warrant me in the conclusion at which I have arrived. Lord Stair says (a):—“Bonds, assignations, or other rights in the names of children, unforisfamiliat and unprovided, are presumed to be donations.” And then he gives the reasons for that:—“And bonds of provision to children are not interpreted in satisfaction of prior bonds, but to be a further addition, and so are any other rights taken in the name of children, especially if unforisfamiliat. Yet a tocher (b) in a contract of marriage was found to be in satisfaction of all former provision, though it did not so express.” And then he refers to a case which undoubtedly was a case in which the first provision was a provision strictly ex obligatione. From the language of Lord Stair, I think I am entitled to infer that the question was somewhat new at that time. He does not lay down the doctrine very positively, but says it has been so found; expresses no objection to the doctrine, but affirms it as applicable to what I presume to have been other cases that had in his time existed.
Bankton says, in the passage immediately following
_________________ Footnote _________________ (
a) B. 1, t. 8, sect. 2. (
b) A tocher is equivalent to dowry, from
Dos.
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He is speaking there of bonds of provision such as he was alluding to in the former part of that paragraph, and he says that a provision made for the daughter upon her marriage will be presumed to have been made in satisfaction of former provisions, that is to say, if there is nothing to vary the case on the one side or the other, the provision made on the marriage is presumed to be that which a second bond of provision would not have been presumed to be, namely, in satisfaction of the previous bond or of all bonds which had gone before. Now, it appears to me that Bankton here lays down the law as the law is in this country, which is that,
primâ facie, if a
_________________ Footnote _________________ (
a) B. 1, t. 6, sect. 5.
Page: 245↓
Erskine (a) says:—“The rule debitor non præsumitur donare being only a presumption, must yield to contrary presumptions. Hence, bonds of provision by a father to a child, especially one who is not forisfamiliated, are, from the presumption of paternal affection, understood to be granted, not in satisfaction of former bonds, but in addition to the child's patrimony.” He refers to Lord Stair for that. “But even this presumption may be overruled by circumstances which point out an intention in the father to include the first bond in the last.” I infer from all this, following the reference to Lord Stair, that Erskine considered this doctrine to have been more elaborately gone into since the time of Lord Stair. “Thus,” he says, “a settlement to a daughter in a marriage contract is presumed to be granted in satisfaction or solution of all former provisions, though it should not bear the words ‘ in satisfaction,’ because provisions granted by fathers in marriage contracts are generally intended to comprehend the whole estate that is to be expected by the husband from the wife or her father in the name of tocher.” That is the way in which the doctrine is laid down by Erskine, and which, as well as the passage from Bankton, would, I conceive, fully bear out the proposition that the presumption in Scotland is the same as the presumption in England.
If a parent, having left by his will 10,000 l. to his daughter on her marriage, afterwards settles 10,000 l. upon her, it would in 99 cases out of 100 defeat his intention if she were allowed to take the two sums.
My Lords, I must here observe that when it is said by the learned Judges in Scotland that this principle
_________________ Footnote _________________ (
b) B. 3, t. 4, sect. 98.
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But now let us see what the early authorities are which either bear out or militate against this proposition. It is perfectly true, as was observed by my noble and learned friend, who referred to many of the opinions that we have before us, that a whole chapter, a whole head in Morrison (a) has reference entirely to this question. They are all more or less ancient cases, —a century or two old. My Lords, it is perfectly true that upon looking at these cases it appears that the greater portion of them are cases in which the prior provision had been ex obligatione. I do not know that that much affects the case; but if it did, they are not all so. There are two, particularly, which are not so, one certainly, and the other in such terms that it may be doubtful whether it is or is not so to be considered. I allude to the case of Belchies v. Murray (b), where a gentleman of the name of Murray made a trust disposition and settlement of his estate upon some relation (being a single man himself), charged with a legacy of 300 l. to his niece, Amelia Belchies. That was in the year 1738. Two years afterwards he revoked that settlement and made a new one, and settled his property upon the Defender Murray, but subject to the legacy which he had given in the former settlement. It appears that soon afterwards Amelia Belchies married, and she had two sons, and after she had the two sons, namely, in the year 1744, Mr. Murray executed a bond to her to pay 1,200 l. to her and her husband and her children, making a sort of family provision for them. My Lords, it was held after the death of Murray that that 1,200 l. being paid (of course they had a right to claim that), Amelia Belchies and her family could not claim the other 300 l., but that the one was in substitution for the other.
_________________ Footnote _________________
( a) Morrison's Dictionary of Scotch Decisions.
( b) Morr. 11,361.
Page: 248↓
If that had been the only case, I should not have felt that that was a case which entirely bore out Erskine and Bankton, because it was not the case of a father by a tocher providing for his daughter. It might have been, though it was not stated, that it was done by a person standing
in loco parentis; but that does not appear, so far as I collect from the report. There is, however, another case reported very soon afterwards, of
Dows v. Dow
(a), which seems to me to go the full length of what these learned institutional writers lay down. In
Dows v. Dow a bond of provision had been made by John Dow in favour of his children, four daughters, and if he should die without issue male, then the bond secured further provisions for them. He had at that time a son, who afterwards died without issue, or at least without issue male. I believe without issue, never having married. And the consequence was, that the estate, I suppose in virtue of some entail, passed to a distant collateral male heir. It was held, upon the question arising between the daughters and the distant male heir, that the tocher having been given by the father upon the marriage of such of his daughters as had married, the tocher mentioned in their marriage contracts was in satisfaction of all former provisions, though not so expressed. But then the Court said,—“If they were contracted” (that is, if the daughters were married, that is the meaning of it) “before their brother died, then they were not thereby excluded from the additional provision incident thereafter by the succession of the other heir male.” That was good sense, because what the father had provided was in the one event a particular portion, and if a subsequent event should happen, a larger portion. The daughters married before the subsequent event had happened.
_________________ Footnote _________________ (
a) Morr. 11,477.
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Now, it appears to me that that case goes the whole length of recognizing this proposition, because, although the provision was not by a trust settlement and disposition, the difference is a mere matter of form. We learn from this case that the system of giving bonds of provision as a mode of providing for children was one that, till a very recent period, was the only mode, or almost the only mode, in which such provisions could have been made. And Lord Murray states that in his experience in his early practice at the Bar, it was the common mode of providing for children. The principle really was, that if you make a voluntary provision for a child, though it be voluntary, yet if you afterwards give a tocher to the child upon his marriage, that supersedes the previous intended voluntary provision.
How has that principle been borne out and acted upon in more modern times? Unless I were to hold that the two cases of Grant v. Anderson and Smith v. Nimmo were wrongly decided, I am unable to come to any other conclusion but that the Courts have acted upon the principle laid down by Bankton and Erskine, and acted upon it as being the clear law of Scotland.
In the case of Grant v. Anderson, which was decided in 1840, a settlement had been made by Anderson, whereby he secured 2,000 l. to his daughter.
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That case was very elaborately discussed, and Lord
Mackenzie, a very able and very painstaking Judge, investigated it fully, and stated that he had been unable to discover one instance in which a provision by will not obligatory was held to be satisfied by a provision in a marriage contract. That may be very true, literally speaking. It did not apply to a provision by will, but it applied to voluntary provisions revocable up to the time of death. Therefore it seems to me, that the distinction between a bond of provision and a will is a distinction too weak to be supported. He says very truly, “I cannot find one case in which a provision by a will not obligatory was held to be satisfied by a provision in a contract of marriage. And one reason” (he says) “much urged in the cases where an obligatory provision (gratuitous or not, but obligatory) was held to be satisfied by an after provision in a contract of marriage was that
debitur non præsumitur donare, which is inapplicable in the case of a
_________________ Footnote _________________ (
a) See the report, from which it appears that it was “held that the provision in the marriage contract was in satisfaction of the previous provision in the settlement.” The settlement was “testamentary.” 3 Sec. Ser. 89.
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It is said that the case of Grant v. Anderson was decided on some special grounds; and unfortunately it has been very much the habit, I am afraid too much the habit, on both sides of the Tweed to say we decide a case upon special grounds, when in truth you wish to shrink from the responsibility of laying down a more general rule. But I seek in vain for any special grounds in the case of Grant v. Anderson. It seems to me that if there was no such primâ facie presumption as appears to exist by the law of Scotland, the case was wrongly decided. I do not mean to say that it was wrongly decided, because, but for the difference of opinion that exists in this case, I should have thought it quite rightly decided according to the general law of Scotland.
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Then that case was followed very soon afterwards by the case of Nimmo, which is very important. That was a case which did not decide the very point, because the other two dispositions came in different order. The two dispositions that had to be considered were, first, the settlement upon the marriage contract; secondly, the provision that was made afterwards. The first settlement had been made in 1807 by Thomas Nimmo, binding his two trustees to pay to each of his five daughters 1,000 l., that is, 500 l. at the end of one year, and 500 l. at the end of five years after his death. Elizabeth, one of the daughters, married in 1825, and Nimmo, the father, then bound himself by her marriage contract to pay 1,000 l. in the same way, that is, 500 l. at the end of one year, and 500 l. at the end of five years after his death, to be settled upon her and her family. In 1830 (whether he had forgotten the settlement of 1807 does not appear), he executed a new settlement, which, of course, got rid of the voluntary trust settlement of 1807, and by that new settlement he burthened his estate to pay 1,000 l. to each of his daughters, including Elizabeth, to be settled in the same way. The question was, whether the daughter Elizabeth was entitled to take that subsequent provision as well as the provision that had been made for her on her marriage? It was held that she was not. This decision, indeed, was not by the universal concurrence of the Judges, but by three out of four. Lord Meadowbank dissented. But observe how he dissents. He says, “I have had no difficulty whatever in being of opinion that the tocher secured to Mrs. Smith” (that was Elizabeth) “by this contract superseded the provision made for her in the deed of 1807.” That is, if the question had been between the marriage contract provision and the prior voluntary provision, he would have had no doubt that
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That, it is said does not mean what we understand by presumption, but only that you are to look at the circumstances of the case, in order from the whole context to discover the intention. In short, that it is questio voluntatis. My Lords, the one reason which leads me to the conclusion that that cannot be what any of these authorities meant is this, that if it was so there was no reason for saying anything at all upon the subject, because, whether you are speaking of tocher or of anything else, if ex visceribus of the instrument, as the Scotch lawyers say, you can discover that a later provision was meant to supersede a former, then without any special presumption or rule of law, the intention so discovered from the instrument itself must prevail.
Upon these grounds I am bound to state that the conclusion at which I should have arrived is that the
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But then, my Lords, it is also said, and has been argued very forcibly indeed by the Lord Advocate, that if there had been such a presumption according to the Scotch law, like every other presumption it may be repelled, and that here there are circumstances which ought to lead your Lordships to say that it was repelled. It was said, first of all, compare this marriage contract of Mrs. Edmiston's with the previous marriage contract. I consider that to be a course which your Lordships cannot adopt. It cannot be consistent with the rules of evidence, either in Scotland or in England, that when you are merely construing the meaning of a particular contract, you should look to see what the maker of that contract, the person entering into it, may have done upon some other occasion. That is not allowable. My noble and learned friend made such reference for a different object. If there be such a presumption, as I should have thought there was by the law of Scotland, then the meaning of this contract must be ascertained with reference to what the law of Scotland was, and with reference to the existence of such a rule. And that being so, it is clear that you cannot look to any other document for the purpose of explaining that which must be explained by what is found within its own four corners. The truth is, if this presumption prevails, the statement that it shall be in satisfaction of previous provisions is unnecessary, and the fact that that has been stated in other instruments only shows, what is very commonly the case, that the testator had unnecessarily, though probably very wisely, (it would have obviated all discussion if he had done so here,) stated what
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But then it is said that here there is no intention of making the daughters equal. That is clear. I think there was no intention that they should be equal. Great inequality appears upon the face of the documents, but the rule does not depend upon the provisions being equal. In some of the English cases, (I cannot say that I have examined them sufficiently to say in all,) there has been great inequality amongst the children that were to take. That inequality existed in the case of
Pym v. Lockyer
(a). The question is not whether the children were intended to be equally provided for, but whether the settlor or testator, the maker of the trust deed, has indicated in what proportions he chooses his different children to be provided for. In
Pym v. Lockyer, which was a great case before Lord
Cottenham, the legacies were not all of the same amount; but Lord
Cottenham does not seem to have considered that as a matter of any importance. In expressing his opinion that the advance of a sum smaller than the legacy should only operate as satisfaction
pro tanto, he says, “A father who makes his will, dividing his property amongst his children, must be supposed to have decided what under the then existing circumstances ought to be the portion of each child, not with reference to the wants of each, but attributing to each the share of the whole which, with reference to the wants of all, each ought to possess.” Then he goes on to show that if he advances a less sum of money to any one child, that does not show any alteration in his intention as to the proportions in which they are to take, but only as to the certain portion that he meant to give by anticipation.
_________________ Footnote _________________ (
a) 5 Myl. & Craig, 29.
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It was argued that possibly the gift might be set up by the subsequent codicil, but I think that is unarguable. It was not very strongly pressed, because, as was pointed out in the case of Powys v. Mansfield (a), the effect of a codicil is only to set up the prior instrument so far as it was then operative, not to give it any effect which by law it had not at the time.
Then with regard to the circumstance that one settlement makes provision only for the children of the marriage, and the other for all the children, that has been often discussed upon grounds applicable as well to Scotland as to England, and it has been held, in the case of
Wharton v. Lord Durham
(b), that that is unimportant, that what you are to consider
_________________ Footnote _________________ (
a) 6 Sim. 528 3; Myl. & Cra. 376. (
b) 3 Cla. & Finn. 146.
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As to the suggestion that the testator evidently intended inequality by reason of the revocation of what he had given to his sons, I think it has been satisfactorily answered, and shown to be immaterial. He had given to one of his sons 2,000 l., subject to the deduction of anything that he might advance to him, and which should appear in his ledger; and also to the other son 6,000 l. in the same way. Afterwards, to prevent any question, he says, as to the one who was to have 2,000 l.:—“I have already advanced him 1,900 l. and odd, which, with the interest, goes far beyond 2,000 l.; therefore that will be found in my ledger, and I revoke all that I have said about the gift of 2,000 l. to him. I desire that he may not be at all harassed or molested as to that which is a debt of more than 2,000 l. appearing in my ledger.” Again, in the same way with regard to the son to whom he had given 6,000 l., he says:—“I have advanced him that which I choose to call 2,000 l.; that is to be cancelled, and his legacy is to be reduced to 4,000 l.” These provisions seem to me to have no bearing upon the question.
Lord Wensleydale's opinion.
My Lords, the first question which arises in this case is, whether it is a rule of Scotch law that a provision of tocher by the marriage contract of a daughter is to be presumed primâ facie to be in satisfaction of former testamentary provisions in her favour?
It is not contended to be a presumptio juris et de jure, but a primâ facie presumption of fact, throwing
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This question is of great importance in a general point of view, as every general rule is, which must, when established, be applied to all cases that come before the Court; though I must say that, on the view I take of the facts in this case, I am inclined to think it would not make any difference in my opinion, if it were established.
I conceive that by the Law of Scotland there is no primâ facie presumption against double portions.
By the law of Scotland, a subsequent voluntary provision by a father given to a child, I conceive is,
primâ facie, to be considered as not being a satisfaction of a former similar provision; there is no
primâ facie presumption against double portions. But there is now established by the law of England, what is said to be an artificial rule, founded upon a leaning against double portions, that where a parent gives a legacy to a child, not stating the purposes with reference to which he gives it, the Court understands him as giving a portion, and if he afterwards advances a portion on the marriage of that child, it is to be deemed a satisfaction of the legacy
(a). This rule is now, by a long course of decisions, firmly and fully established, and cannot be disputed, and any comment upon it would be worse than useless. It by no means follows, however, that because it has been adopted by the Courts in this part of the United Kingdom, it must be followed in another part. This case depends entirely on Scotch law. I have made a careful examination of the several authorities referred to by the Lords of Session in their full and elaborate judgments in the Court of Session, and quoted in the very able arguments at
_________________ Footnote _________________ (
a)
Pye Dubost, Exparte, 18 Ves. 140.
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I am not satisfied that there is any rule of the law of Scotland that a settlement on a daughter by a marriage contract is presumed to be a satisfaction of a previous provision unless that provision be ex obligatione.
There is certainly no decided case, in which such a rule is laid down, where the testamentary provisions are voluntary; and I am not satisfied that the passages cited from Erskine (a) and other text writers, which have been quoted, are anything more than illustrations of the general rule, debitor non præsumitur donare. It is quite true that observations are often made in the cases, as to the weight to be attached to a provision for tocher in a marriage settlement, when the question is, what was the intention of the parent?
In the case of Dows v. Dow, which was much relied upon, where the provision was not ex obligatione, it was stated (at the bar apparently) that tochers and contracts of marriage by the father, are ever presumed to be in satisfaction of all former provisions; for parents would never omit to accumulate their children's provisions in these contracts, that their reciprocal conditions might be better. This is not, I think, a statement of a rule of law, but an observation which, when made in contracts of that description, may be entitled to weight; the question being, as I conceive it always is, of the intention of the father in giving the portion. There is, however, an observation of the Lord Justice Clerk and the Lord President worthy of remark, that in such cases the father stipulates only for what he means to be bound to do, not for all he may do.
_________________ Footnote _________________
( a) B. 3, t. 3, sect. 93.
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The other cases which were cited seem to me to be of the same kind. The observation is made on the marriage settlement as evidence of intention, but those cases do not establish, that it is a rule of law that tochers and contracts of marriage constitute a primâ facie case of satisfaction. If there were a case of a portion by a testamentary instrument of a sum of 1,000 l. to a daughter, and a marriage contract in which nothing more was stipulated than to give 1,000 l. tocher to the wife, I am not satisfied that there is any rule of law in Scotland that one is to be taken primâ facie to be in satisfaction of the other; and that if there were no further evidence on either side, the decision of the Court ought to be in favour of the Defender. It is, I think, always a mere question of the actual intention of the father, and must be determined in each instance upon the whole evidence applicable to such a subject.
In England, if the case were to arise before a tribunal of which a jury formed a part, this question, I conceive, would be to be determined by them, subject to the construction of the terms of each written instrument by the Court. In our Courts of Equity, and in the Courts in Scotland, it would be the duty of Judges, exercising in this respect the functions of a jury, to decide the question of fact. It is obvious that decisions of such Courts upon a mere question of fact are comparatively of little value, as precedents to be followed; one case very seldom forming a satisfactory guide in another, any more indeed than the decision of one jury would be a binding authority for another.
The question then for us to decide is, whether we are satisfied that Mr. Kippen, by the marriage settlement of December 14th, 1850, giving his daughter Margaret 5,000 l. as a tocher, meant thereby to satisfy
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As to the first provision of 800 l. due ex obligatione under the onerous contract of Mr. Kippin's own marriage contract, the established rule of law applies, debitor non præsumitur donare, and Mr. and Mrs. Edmiston cannot have a legal claim for 800 l. It must clearly be taken to be satisfied by the tocher. On this point all are agreed.
The question in the case is, whether the evidence shows that it was Mr. Kippen's intention that the 4,000 l. should be satisfied by the provision in the marriage contract. Upon this question the Judges divided, eight being of opinion that he did not, and five that he did; giving their reasons most ably on both sides, and apparently exhausting the subject.
I have considered their reasons with great attention, and have satisfied myself that the majority are right, and that the truster, Mr. Kippen, did not mean the marriage tocher to be a satisfaction of the legacy.
The grounds upon which I have come to this conclusion are, first, that the marriage contract with Mr. Edmiston contains no clause of renunciation and discharge of her claims against her father; whereas in the previous settlements, on the marriage of Mr. Alston with Marianne Kippen on the 17th of June 1848, and of Mr. Shaw with Christina on the 12th of May 1849, there is contained a renunciation of “every provision, legal or conventional, competent to be made against William Kippen or his estate after his death.” It must be considered, at all events, a very doubtful question of law, whether a contract of marriage was
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This difference between the deeds is attempted to be accounted for by the circumstance that a different law agent was employed to draw Mr. Edmiston's marriage contract, Mr. Kippen's son, a writer at Glasgow, having prepared the other two settlements. But I think we cannot attend to this. By whomsoever prepared, all the instruments must be taken to express the intention of the party to them; and it is a very strong circumstance, to show that he meant that it should not operate as a discharge, that one settlement contains no discharge, and the two others do.
It is to be observed that the suggestion made that he did not employ his son to draw the last settlement, because he did not like his son to know that he gave a larger portion to Mrs. Edmiston than to her other married sisters, is unfounded, for it appears that his son had failed in business, and was no longer acting as a writer at the time this marriage contract was prepared.
The second circumstance which weighs with me is, that after the alterations made by the second codicil (January the 6th, 1852) he confirms his first disposition and deed of settlement in all other respects, which
primâ facie indicates his intention that the 4,000
l. provided for Mrs. Edmiston therein should be paid. It is argued that if that provision had been already satisfied by the gift of a tocher of 5,000
l. it would not be revived by this provision, as it certainly would not, by the law of England, according to the authority of
Powys v. Mansfield
(a). But in this case, which is one purely of intention, I cannot
_________________ Footnote _________________ (
a) 6 Sim. 528; 3 Myl. & Craig, 376.
Page: 263↓
I cannot help thinking, therefore, that the confirmation of the trust dispositions in other respects is very strong evidence indeed of the intention of Mr. Kippen to confirm the legacy of 4,000 l., not with standing the marriage settlement.
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These are the principal reasons which satisfy me as to the testator's intentions. I do not much rely on the difference of the provisions in the marriage settlement from the trust dispositions, because the marriage contract gives 1,000 l. more than the settlement which Mr. Kippen may have thought a compensation for the difference of the provision in other respects. Nor do I, on the other hand, place any reliance upon the circumstance that a father must be supposed to regard his children with equal affection and as equally entitled to his bounty. I agree entirely with the forcible and just observations of the Lord Justice Clerk against this being a right ground of judicial decision. If, indeed, we were to proceed on this supposition, it is impossible to reconcile with it the different provisions for the children, which, if we consider the marriage contract to be a satisfaction of the bequest, are obviously unequal.
I think, therefore, that the question in this case being clearly a question of fact, viz., of the intention of the father, the evidence is in favour of the marriage contract not being a satisfaction of the bequest. And I therefore concur with the majority of the learned Judges in the Court of Session, and with my noble and learned friend on the woolsack.
The
How far, when a judgment is affirmed, the question being one of admitted difficulty, costs are to be disallowed as against the Appellant.
Mr. Anderson: That, my Lord, would be no relief to me, because I am residuary legatee. I submit to your Lordships that there should be nothing said about costs. I think your Lordships have laid it down as a rule that when you differ among yourselves,
Page: 265↓
The
Interlocutors appealed from, affirmed, and Appeal dismissed.
_________________ Footnote _________________
( a) 10 Cla. & Finn. 153.
Solicitors: Dodds and Greig — Maitland and Graham.