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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mackie v. Herbertson and Others (Gloag's Trustees) [1884] UKHL 465 (6 March 1884)
URL: http://www.bailii.org/uk/cases/UKHL/1884/21SLR0465.html
Cite as: 21 ScotLR 465, [1884] UKHL 465
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SCOTTISH_SLR_House_of_Lords
Page: 465↓
House of Lords.
(Before the
v.
(In the Court of Session, March 9, 1883, ante, vol. xx. p. 486, and 10 R. 740.).
Subject_Succession — Donation — Husband and Wife — Provisions in Antenuptial Contract for Child of Previous Marriage — Jus crediti.
Facts:
A widow having children by her first marriage entered into a second, in contemplation of which she, by antenuptial contract with the second husband, conveyed to trustees her property, heritable and moveable, for behoof of herself in liferent only, excluding the jus mariti, and for behoof of the children “procreated or to be procreated” of her body in fee, in such proportions as she might appoint, or failing such appointment equally. The trustees were infeft in the heritable property thus conveyed, and they entered into management of the estate. There were no children of the second marriage, and the wife died leaving a settlement by which she affected to exercise the power of appointment and deal with her whole property. By this settlement she left only a small legacy, payable, in the discretion of her trustees, to one of the children of the first marriage. Held ( rev. judgment of Second Division) that the marriage-contract conferred upon the children of the first marriage a jus crediti, and was not quoad them a merely testamentary provision, and therefore that their mother could not by her settlement defeat this child's claims under it.
The facts of this case are fully detailed ante, vol. xx. p. 486.
William Cross Mackie, the pursuer, appealed to the House of Lords in forma pauperis.
At delivering judgment—
Page: 466↓
Now, the propositions, as I understand them, upon which the judgments in the Court below depend are in substance these—That according to the true construction of this instrument, having regard to the manner in which the consideration of marriage is viewed by the law of Scotland, there is, as it was put by the Lord Advocate, a gift of one kind, and with one class of legal incidents, to the future children of the then intended marriage, giving them a jus crediti, and a gift of another kind, with another class of legal incidents, to the children already born of the lady, which is revocable and testamentary. Of course, my Lords, if there had been words drawing that line between the two classes of children, or if the nature of the interests given to them had been such that, being ascertained by construction, the law of Scotland would have regarded them in those two different lights, in that case no doubt the judgment given in the Court below might have prevailed. But, as it appears to me, our first duty is to construe this instrument, and no authority has been cited, nor, in the absence of authority, can I conceive of any principle, why because the instrument is a marriage-settlement it should not take effect according to the intention to be collected from its terms upon those principles of construction which ought properly to be applied to those terms as they stand in the deed. Well, as I have said, as far as the form is concerned, and as far as the conveyance to the trustees is concerned, there is nothing wanting in this deed which is requisite to make a complete and a perfect title immediately effectual for the purposes of the trust. There are certainly no words indicating an intention that any part of it should be revocable, either on the footing of power or on the footing on which all testamentary instruments are revocable. There is nothing to show that this was to be testamentary; and I cannot help pausing to observe that the argument on the other side really requires that it should be regarded as testamentary and not as a reserved faculty or power independently of property.
My Lords, the form being admitted to be amply sufficient for the purpose, if according to the true construction the instrument has that effect, we must look at the words and see what they mean. There is first of all a declaration that “the subjects are to be held in trust for the ends, uses, and purposes following.” The first purpose is “for behoof of” the lady, “in liferent for her liferent alimentary use of the annual proceeds thereof allenarly.” That is perfectly intelligible, and disposes of the whole usufruct and beneficial interest during her life, Then there is a renunciation of the jus mariti, which I assume, with the majority of the Judges in the Court below, to be a complete renunciation as to the corpus of the trust-estate, and not as to the income during the wife's life only. Therefore we have the whole period of the wife's life provided for by giving her a life interest inalienable for herself alone, and no more than a life interest; and though I do not at all mean to say that if the true result in point of construction or of law had afterwards been to show that she was to have more than a life estate, the use of the word “allenarly” would have prevented its operating accordingly, yet, on the other hand, so far as intention is concerned, I conceive this to be an indication that she was meant to have, not the fee but a life estate, and that life estate as a burden upon the fee. Then it goes on, “and for behoof of the children procreated, or to be procreated of the body of the said Mrs Helen Campbell or Mackie, in such proportions and on such terms and conditions as the said Mrs Helen Campbell or Mackie may appoint by a writing under her hand, which failing equally among them, share and share alike, and their heirs and executors whomsoever in fee,”—words completely and absolutely sufficient to carry the fee to the class of children there described, of whom two were then in life, namely, those who were already born of the previous marriage.
We are now dealing with the question of intention as discoverable from the words of the deed; and to me it is as plain as anything in the world can be that the intention was to make of all the children a single class, which class were to take equally among them, share and share alike, subject to a power of appointment, which, if exercised in good faith, might be exercised so as to give the members of that class, whether of a former marriage or of the present marriage, such shares as the mother might think fit. To my mind anything more absolutely inconsistent with the intention discoverable from these words than the suggestion that some of them were to take vested interests as they came into existence, in the nature of a jus crediti, and that others were to take nothing at all except subject to the testamentary power of the wife, is inconceivable. How could they possibly take modo et forma, as those words direct, without taking equally among them share and share alike? Can any intention possibly be made clearer by words than the intention expressed by these words that they should form a single class, and for the purpose of the succession to their mother in this property stand pari passu equally inter se except so far as she—not in favour of anybody else, but in favour of some of the members of that class—might think fit to create inequality? Therefore, if it is to be regarded as a question of intention discoverable from the words of the deed, I cannot see how there is any room whatever for serious doubt or question as to the intention; and it being admitted that all the conveyancing part of the operation is amply sufficient to vest the fee, subject to the mother's liferent—two of the members of that class having been in existence at the time when the thing was done—and it being admitted that it could be legally done, I am wholly unable to understand on what grounds it should be held not to have been legally done.
But, my Lords, the argument seems to be this—that this is a marriage-contract, and that when you are dealing with a marriage-contract the law recognises, without more, the consideration of marriage as extending to the spouses and to the children or issue to be procreated of that marriage, and that all the provisions for any other persons,
Page: 467↓
My Lords, I really do not think that I need make any further observation upon the case than this, that if any English authorities were fit to be regarded in a question of this kind as to what is and what is not within the consideration of the contract, I think the case of Newstead v. Searle, and the case of Clayton v. Lord Wilton would be very much to the purpose. Newstead v. Searle was a case of this kind—there was a marriage contract, and there was a gift in remainder to the existing children of a former marriage, subject to letting in those who might afterwards be born of the intended marriage; and when they came into existence the state of things would be such as we have here. Upon those circumstances Lord Hardwicke, a very great judge, entertained no doubt that the considerations of the contract included the earlier children, because their interests and those of the children of the marriage which afterwards took place were so dealt with that it was plain that the stipulations for those children who were within the marriage consideration were dependent upon the agreement that the others should take as they did. The children within the consideration were to take upon certain terms; and without giving them either more or less than that which the contract gave them, one could not disappoint the others. Exactly the same was the principle of the case of Clayton v. Lord Wilton, though the form in which the question was raised was different, because it was a limitation by way of remainder occurring after a gift to those who were within the consideration of marriage, and before another gift to those who were in the like situation.
My Lords, I should hesitate very much to rely upon English authority in any case in which there was really Scotch authority to the contrary, even when the matter decided in the English cases was upon a point which in reason must be common to the jurisprudence of all countries, namely, whether a particular consideration does or does not extend to particular persons. The considerations of the contract, though founded on marriage, must, I apprehend, extend to all the terms of the contract on which depend the interests of those who are within the consideration of marriage, and when they take only on terms which admit to a participation with them others who would not otherwise be within the consideration, then, not the matrimonial consideration properly so called, but the considerations of the mutual contract, extend to and comprehend them.
The only other point which I need notice at all is this, that it was suggested in the argument, and seems, I think, to have been thought by some of the learned Judges in the Court below, that whatever might have been the view of the case if there had been children born of this then intended marriage—the second marriage—yet that it is different when there are none. Now, I apprehend that upon the construction of this deed, its effect and operation must be determined at the time when it was executed, and not according to the course of subsequent events. If, indeed, it had been expressed thus (as I put it in argument to the Lord Advocate)—“After the life interest of the wife, subject thereto, to the wife in fee, provided that if any child shall be born of the marriage, then the same shall be for the children of both marriages,”—then the children of both marriages would only have taken if that event had happened. When that event did happen, then I take it the position of things would be very much the same as it is now, but if that had been the case I agree that if the disposition in their favour was to depend upon the consideration of there being a child born of the second marriage, they would have taken nothing if no such child had been born, and of course the mother would have had the property in the meantime. But those are not the words of the deed, and without the greatest violence to all principles of construction your Lordships cannot, I think, interpolate any such words into the deed. Taking the deed as it stands, there were living persons, children of the first marriage, who were to be members of the class which was to comprehend children of the second marriage, if born, and who were capable of taking, and in my opinion did take, a beneficial interest in the fee. There is nothing testamentary, there is nothing to make the interest revocable, and consequently I must move your Lordships that the appeal be allowed, and that the interlocutors pronounced in the Court below be reversed.
Page: 468↓
The general rule of law is, I think, very clearly laid down by Mr Erskine in his work, b. iii. tit. 8, par. 39, where, viewing the side of the husband, he says—“The father lies under no degree of restraint in favour of the substitutes who are called by the marriage-contract after the issue of the marriage, and who acquire no right by such substitution;” and the learned author then goes on to explain the considerations upon which that rule rests. “For,” he says, “no contract can have effect beyond the interest of the parties contracting; and the wife and her relations, who are the only contractors with the husband, are not interested in succession except in so far as it is provided to the wife's issue.”
At the date when Mr Erskine wrote, the introduction of the machinery of a trust into a marriage-contract was scarcely known; and his observations plainly refer to the usual form in which marriage settlements of land were made in those days, destining the settled estate to the institute, the heir of the marriage, and failing that heir to substitutes who were not within the family. But it was found in course of time that certain inconveniences resulted from that form of settlement, because it left the parents fiars, and so exposed the fee which was destined to the children of the marriage to eviction at the instance of creditors and onerous assignees. Accordingly, the machinery of a trust was introduced, which divested the parents of the fee, and had the twofold effect of protecting the estate of the fiars absolutely and also enabling the spouses to attain what they had had some difficulty in effecting before, namely, giving the wife an alimentary provision out of the estate which truly belonged to herself, and excluding from that the diligence of her own creditors.
Now, after that device of a trust was generally adopted, the Courts still continued to construe clauses occurring in a trust-deed in the same manner as they had previously construed clauses in a destination; and although the trust existed they held that it had been constituted and existed, and must be so read, except when it clearly appeared to the contrary, as having been constituted simply for the purpose of protecting in the meanwhile “the interests of the wife and of the children of the family; but they held that provisions made by the wife in favour of strangers, which in an ordinary unilateral deed of destination, or in a marriage-contract, would be construed as testamentary, ought not to be interpreted in any other sense when they occur in a disposition of trust constituted for the purpose of a marriage-contract. The rule has in this case been extended by the Court quite beyond the Scope of the doctrine of Mr Erskine. These children of the second marriage in the present case are not, in any sense of the word, substitutes—it is a most inaccurate expression to apply to them; and certainly the word “substitute” as used by Mr Erskine could never apply to or comprehend such a case. They are institutes in this case; they are not even conditional institutes, taking upon the failure of the children of the marriage in immediate contemplation; they are institutes taking along with the children of the marriage, at the same time, and to a great extent (for that must be conceded) on the same conditions. No doubt an attempt was made to show, by the authority of a very useful text-book [Fraser, ii. 1410], that the doctrine must be more widely extended;and three cases are referred to in a note appended to that work as supporting the doctrine which the Lord Advocate cited, and which seem to support the proposition that the principle laid down by Mr Erskine is expressed in too limited terms, and that when a provision is made not only to the children of the marriage in contemplation, but also to the children of a former marriage, the provision in favour of the one must be held as onerous and irrevocable, and the provision in favour of the other as revocable and testamentary. Now, I venture to say that of these three cases, Macleod v. Cunninghame [July 20, 1841, 3 D. 1288— aff. 5 Bell's App. 210], and Edgar v. Johnston [M. 3089— aff. May 31, 1742, 1 Pat. App. 334], have not the remotest bearing upon the principle in question, and the case of Wilson v. Niblie [Jan. 15, 1825, 3 S. (o.e.) 420], if it were an authority for anything at all (which to my mind is not at this moment a very clear proposition), is an authority distinctly against the respondents in this case.
My Lords, the case not being within the rule, the House has in my apprehension to deal with this as an ordinary question as to what is the intention of the maker of this deed. I am assuming in favour of the respondents at this moment that the lady settled this property at her own hand, and without any bargain or paction with her husband, and viewing the destination or disposition in that light, it does not appear to me to be at all doubtful that what she intended to confer upon the children of her first marriage was an estate and interest absolutely identical with that which was being pactionally secured to the issue of the marriage into which she was entering.
I entirely concur with the observations which have been made by the noble and learned Lord on the woolsack as to the point of time to which we must look in construing a clause like this. It is impossible to read it in the light of the events which have occurred. That would lead to very strange results, for in that case the same clause inserted in deeds of marriage settlement for the same purposes would be differently read upon every occasion according to what might chance to have followed in regard to the two families upon which the settlement was made. Therefore we must look at it as at the date of the marriage—as at the time when there was a possibility of issue of that second marriage—and so looking at it I do not think there can be the least doubt that it was the intention of the wife to give her children of the first marriage an estate equal in all respects in quality to that which she was conferring upon the children of the second marriage with the assent of her husband. The power of apportionment attached to the gift to the two families appears to me, if it were necessary, to make the intention still more clear.
If the case fell within the doctrine of Mr Erskine, and the principle laid down by the majority of the learned Judges in the Court
Page: 469↓
My Lords, all these considerations satisfy me more thoroughly, if it were necessary, that the intention of the wife by this clause was to give to the children of the first marriage an absolute and indefeasible interest; and that being so, she might, before the deed was issued, and as long as it was under her control, have destroyed it, or have put an end to that right. But it is impossible, after what has taken place, and particularly after what took place immediately on marriage by the constitution of the trust, that she could recall it. Accordingly, I have no hesitation in agreeing with your Lordship that the whole of the interlocutors under appeal, beginning with that of the Lord Ordinary of the 19th of July 1882, ought to be reversed, and that the cause should be remitted to the Court below for further procedure, because I am very sorry to see that the judgment of the House will not dispose finally of the litigation between these parties.
If that was her intention, and if that intention has been, adequately expressed in the terms of the instrument, the next question is, is there any rule of Scotch law which we ought to apply so as to prevent that intention from taking effect? The Lord Advocate in his most able argument has called our attention to a great number of authorities, but he has failed to satisfy us that there is any such rule of law, and the ordinary consequence must therefore ensue, namely, that we must give effect to the intention of the party as expressed in the instrument. It is very singularly expressed, and the sequence of events is actually as I have described. In the first instance the object of the deed is to provide for pre-existing children. She does not in the first instance provide for children to be born of the second marriage. This singular instrument says, “And for behoof of the children procreated or to be procreated of the body of said Mrs Helen Campbell or Mackie, in such proportions and on such terms and conditions as the said Mrs Helen Campbell or Mackie may appoint by a writing under her hand, which failing equally among them, share and share alike.” My Lords, I am not aware of any rule of law which prohibits us from giving effect to that clearly expressed intention, which, in my humble judgment, admits of no doubt whatever; and
Page: 470↓
The House reversed the interlocutor of the Second Division and declared that the second plea-in-law of the defenders and respondents [viz., “the provisions contained in the marriage-contract of Helen Campbell or Mackie and John Gloag in favour of the children of the said Helen Campbell or Mackie by her first marriage were not onerous or irrevocable, and the pursuer had and has no jus crediti therein, and the said provisions being testamentary and revocable, the present action cannot be maintained”] ought to be repelled; Ordered that the “respondents pay the costs following on the reclaiming-note in the Court below, and such costs in this House as have been incurred by the appellant in appearing in forma pauperis, the amount of such last-mentioned costs to be certified by the Clerk of the Parliaments with the usual provisions for diligence in the case of non-payment, as in the case of Mackenzie v. The British, Linen Company [11 Feb. 1881, 8 R. (H. of L.) 9]; the costs prior to the reclaiming-note to be dealt with by the Court below as costs in the cause;” and remitted the cause to the Court of Session to do therein as shall be just.
Counsel for Appellant (Pursuer)— Shiress Will, Q.C.— M ‘Clymont— C. M. Le Breton. Agents— A. Beveridge— W. Officer, S.S.C.
Counsel for Respondent (Defender)—Lord Adv. Balfour, Q.C.— Webster, Q.C. Agents— Martin & Leslie— J. & J. Ross, W.S.