United Kingdom House of Lords Decisions

The case of Borrie v. Coldstream ( 5 D. 1297) is an authority to the effect that the consent of the wife may be effectually given by her subscribing for that purpose a testamentary deed of the husband standing unrevoked at the time of his death. The same point was decided by this House in Dunlop v. Boyd ( 3 Macph. (H. L.) 46), in which it was held that the wife's consent remained valid and binding on her representatives, although the husband had subsequently revoked certain portions of the deed which did not affect the wife's provision, or the conditions upon which her consent was given. In Leighton v. Russell ( 15 D. 126) Lord Fullerton (p. 132) expressed an opinion that a wife's consent expressed by her signature to a deed, revocable at the will of the husband, ought not to exclude her legal rights, but his opinion was not shared by the majority of the Court, and it is in direct conflict with the subsequent decision of this House in Dunlop v. Boyd. The points actually decided in Leighton v. Russell do not appear to me to touch the present case. There the husband survived his wife, and after her decease he revoked all prior settlements executed by him, and made a new testamentary disposition of his whole means and estate. After his death the wife's next of kin sued his executor for their share of the goods in communion at the time of her death, the defence of the executor being that the claim was extinguished by the wife's consent to the revoked settlement. It was admitted that the deed was not extant, and the executor, in order to instruct his defence, brought an action for the purpose of proving its tenor. The majority of the Court gave judgment in favour of the wife's next of kin upon these two grounds—(1) that the efficacy of her consent was dependent upon the deed becoming operative; and (2) that assuming its tenor to have been as alleged by the executor, her consent related exclusively to her rights in the event of the husband dying before her, and had no reference to the rights arising to her next of kin upon her own predecease.

By his trust-disposition and deed of settlement the late Dr Baxter conveyed his whole estate, heritable and moveable, to the respondents as his trustees, with directions, first, to pay debts; secondly, to make certain payments to a college in Dundee; and, thirdly, to pay over the free annual proceeds or income of his estate to his wife, in the event of her survivance, during the whole period of her life. The fourth purpose of the trust runs thus—“I direct and empower my said trustees, after the death of the longest liver of me and my said wife, to realise and convert into money all my estate and effects, or such part or parts thereof as they may think proper, or in such manner and at such time or times, and at such prices as they think fit, and after the death of the survivor of me and my said wife, and with her consent and full approval (in token of which she has subscribed the deed), I direct and appoint my said trustees as soon as they conveniently can, or at such time or times as they consider proper, with full power to postpone the payment of any of the legacies underwritten if my trustees think it expedient to do so, to pay to the institutions, societies, and persons after mentioned, or to hold in trust for behoof of such females as are after specified, whose husbands' rights are excluded, the following sums or legacies which I hereby legate and bequeath to them respectively.” Then follows an enumeration of legacies to certain institutions and endowments to the amount in all of £26,750, of which £16,000 is given to relations of the wife. The fifth purpose of the trust makes specific bequests of household articles and other personal effects; and by the sixth purpose the testator bequeaths the residue of his estate to such charitable uses as may be selected by his trustees.

Apart from any consent given by Mrs Baxter to her husband's trust-deed, it is clear that had she survived him she would have been put to her election between the liferent thereby provided to her and her legal rights as widow; and the only point arising for decision is whether Mrs Baxter by her subscribing the deed consented to accept the liferent, and thereby deprived the appellant of the right which he would otherwise have had to make an election now. That is a question depending upon the construction of the deed.

I cannot assent to the argument submitted for the respondents to the effect that Mrs Baxter by subscribing the settlement as one of the parties to its execution, without any limitation appearing in the testing clause, became a consenter to all its terms and provisions. It is unnecessary to consider what would have been the effect of her subscription if there had been no reference in the body of the deed to the purpose for which it was adhibited, because part of the deed, the fourth purpose, expressly bears to have been made “with her consent and full approval (in token of which she has subscribed this deed).” I think that declaration must be taken to be conclusive as to the purpose for which she signed, and I am consequently of opinion that her consent cannot be carried beyond the fourth purpose, except in so far as her assent to its provisions necessarily implies approval of other parts of the deed. It appears to me, however, that the fourth purpose, and the antecedent provision of liferent in the third purpose, are so intimately connected with each other that Mrs Baxter must be held by plain implication to have accepted that provision. In the event of her being the survivor of the spouses payment of the legacies bequeathed by the fourth purpose is deferred until her death; and upon the occurrence of that event they are made a first charge upon the estate to be held at that time by the trustees, consisting of the universitas of the testator's estate under deduction only of proper debts. In my opinion her consent to that arrangement plainly implies that Mrs Baxter not only agreed that the legacies should be paid, but made it a condition of her agreement that they should not be paid until the expiry of the liferent right provided to her by the third purpose of the settlement.

I accordingly move that the interlocutor appealed from be affirmed, and the appeal dismissed with costs.

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