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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Naismith v. Boyes [1899] UKHL 973 (28 July 1899)
URL: http://www.bailii.org/uk/cases/UKHL/1899/36SLR0973.html
Cite as: [1899] UKHL 973, 36 ScotLR 973
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SCOTTISH_SLR_House_of_Lords
Page: 973↓
House of Lords.
(Before the
v.
(Ante, May 27, 1898, vol. xxxv. p. 702, and 25 R. 899.)
Subject_Succession — Exclusion of Legal Claims — Jus relictæ — Legitim.
Facts:
A testator, by a settlement disposing of his whole estate, made certain provisions for his wife and children, subject to the declaration that these provisions should be in full of their legal claims.
The wife and children accepted the provisions of the settlement.
By the death of the residuary legatees before the period of vesting provided by the settlement part of the estate fell into intestacy.
Held ( aff. judgment of the First Division, dub. Lord Davey) that the legal rights of the wife and surviving child were only excluded in so far as conflicting with the settlement, and were not excluded from estate falling into intestacy.
The case is reported ante, ut supra.
Mrs Naismith appealed against the judgment of the First Division.
At delivering judgment—
The children of the second marriage died under age.
Both the respondent and the appellant accepted and enjoyed the provisions made for them.
It is argued that though the portion of the estate in dispute has fallen into intestacy the provision which I have quoted bars both the appellant in respect of her legitim and the respondent in respect of her jus relictæ from any further claim than that which they had respectively enjoyed under the settlement made by the testator.
On the other hand, it is said that the provisions made, and which were intended only to apply to such part of the estate as was disposed of by the settler, and could not be intended to apply to any rights arising from intestacy which was not contemplated by the terms of the settlement at all, and I think that is a reasonable and sensible view of the matter. To use the language of Lord M'Laren, with which I concur, such clauses are intended to enable full effect to be given to the testator's testamentary dispositions by putting all persons who take benefit from the will under a disability to put forward legal claims which would have the effect of withdrawing something from the estate disposed of.
As regards all that remains over when the provisions of the will are satisfied—in this case the whole residue—the law of intestacy takes effect upon it. This seems to me good sense, and I am satisfied that it gives effect to the intentions of the testator in the sense that he contemplated a state of things by the clause in question which as a fact did not arise, and that he never contemplated the clause as applying to intestacy at all.
I think the judgment ought to be affirmed.
The parties have by their agreement settled the question of costs.
By the terms of this settlement Mr Hamilton directed his trustees to pay the free annual income of the whole residue of his estate to his widow for her alimentary liferent, to be restricted to one-half of the free income in the event of the widow entering into another marriage. After the fulfilment of these purposes the trustees were directed to hold the residue for behoof of the children of the testator's second marriage, and the issue of such as might predecease until the youngest of the children had attained the age of twenty-one years, and upon that event to divide, pay, and convey the residue of the estate among the children of the second marriage, “and that equally among such children then surviving, and the issue of such as may have predeceased per stirpes—that is, such issue taking only the share which their parents would have taken if in life.” The settlement contained no destination-over of the residue in the event of the failure of the children of the second marriage or their issue before the period appointed for distribution.
The settlement also contained the following declaration which has been the occasion of controversy in this case:—“And I declare the provision hereby made for my wife and the children of our present marriage, and the provisions previously made for the said Minnie Arthur Hamilton (the present appellant), to be in full of all that my said wife can claim in name of terce, jus relictæ, or
Page: 974↓
The testator died on the 29th January 1892 survived by his wife and by the children of both marriages. The children of the second marriage died in pupilarity upon the 14th and 20th days of May 1892. The widow was married to her present husband upon the 8th July 1896, and thereupon her interest in the free income of the residue became, in terms of the settlement, restricted to one-half. The appellant and the respondent, after the testator's death, accepted the provisions which had been made for them respectively, which were declared by the settlement to be in full of their legal claims.
In July 1897 the appellant and the respondent concurred in stating a special case for the opinion and judgment of the First Division of the Court of Session, to which the trustees of the testator were formally made parties, but not as claimants. The estate submitted to the jurisdiction of the Court consisted of one-half of the free residue of the trust-estate, in which the respondent had lost her alimentary right of liferent upon her re-marriage in July 1896. The respondent (1st) maintained that by the terms of the settlement the whole residue vested a morte tentatoris in her two children, and that she succeeded on their deaths successively to one-third of their interest; and (2nd), in the alternative, that on their deaths the residue, in so far as not affected by her liferent, fell into intestacy, and that accordingly she was entitled to her legal rights of terce and jus relictæ therein.
The appellant, on the other hand, contended that her own claim of legitim, and the respondent's claims of terce and jus relictæ, were effectually barred by the terms of the clause already quoted from the settlement, and by their subsequent acceptance of the provisions respectively made for them by the testator, and that the appellant was therefore entitled, as the sole heir ab intestato of her father, to take the half of residue which had been set free by the restriction of the respondent's alimentary liferent.
The residue held by the trustees of the deceased consists of a house and small leasehold property, together about the value of £1600, and of personal estate amounting to £5107, 3s. 5d. It is not stated in the special case that the testator died infeft in the heritable property, but the Court, apparently without objection by the parties, have proceeded upon the footing that he was so, and that the widow's claim of terce was, if not barred as the appellant maintains, well founded.
The judgment of the First Division was delivered on the 27th May 1898 by Lord M'Laren, with the concurrence of the Lord President (Robertson), Lord Adam, and Lord Kinnear. Their Lordships negatived the respondent's contention that the residue had vested in the two children of the second marriage, and as neither of the parties to this appeal has attempted to disturb the finding, I do not think it necessary to say more than that I agree with it. By their interlocutor they affirmed (1) that “the whole residue passed to the testator's heirs in intestacy as at the date of his death,” and (2) that the respondent, the testator's widow, is entitled to her legal rights of terce and jus relictæ out of any estate which may have fallen into intestacy in addition to the liferent provision conferred upon her by the settlement. Their Lordships have thus distinctly affirmed that the legal claims of the respondent are not barred by the clause of the settlement already referred to, but their interlocutor does not make the same affirmation with respect to the appellant's claim of legitim. So long as the respondent only takes one-third as jus relictæ, it is not material to the appellant, in so far as the moveable estate is concerned, whether she takes in the capacity of her father's heir, or in the double capacity of his heir and of a child entitled to legitim. If the appellant's right of legitim was barred, and the respondent's legal claims were not, the result would be that the respondent would take one-half instead of one-third share of the moveable estate. The reasons which the learned Judges have assigned for holding that the respondent is not barred from claiming her legal rights apply with the same force to the appellant.
The legal claims of the widow and children are not, strictly speaking, rights of succession, and they infer no representation. They are in the nature of debts which attach to the free succession after the claims of onerous creditors have been satisfied. Hence it has been frequently said judicially that, in respect of their legal claims, the widow and children are heirs in competition with onerous creditors, and are creditors in competition with heirs. The widow's terce is one-third of the income of the heritage in which her husband died infeft. Her jus relictæ is one-third of the corpus of his moveable succession when he is survived by children, and when he leaves no children is one-half. The legitim in like manner is one-third when there is a surviving widow and one-half when there is not. The other third or half, as it may be, of the moveable succession descends by right of inheritance to the heir or heirs ab intestato of the deceased.
The Lords of the First Division have based their judgment in substance upon the ground that the clause declaring the provisions respectively made by him in favour of the respondent and the appellant to be in full of their legal claims has exclusive relation to property passing by mortis causa disposition from the testator, and that it has no reference to and does not affect property which he attempted to dispose of by will, and which has fallen into intestacy by reason of the failure of the objects of the bequest. At the hearing of the appeal I entertained doubts whether that conclusion could be justified, but since that time I have had an opportunity of considering the question, and I am satisfied that, whilst the decision of the Court below does not run counter to any authority which
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In a case like the present, where the testator settled upon the members of his family all the property, both heritable and moveable, of which he was possessed, I do not think it can be reasonably assumed, in the absence of any provision to that effect, either express or implied, that he intended to regulate the disposal of any part of his estate which might possibly lapse into intestacy. In my opinion the testator, when he inserted a clause in his settlement barring the legal rights of the appellant and respondent, had no object in view except to protect the settlement by preventing the enforcement of these claims to the disturbance of his will and to the detriment of the beneficiaries whom he had selected. When, accordingly, by the premature decease of his children of the second marriage the residue provided to them by his settlement became intestate, I do not think it can be held that the testator contemplated or intended that the exclusion of the legal rights of his widow and surviving child should any longer remain operative. I have therefore come to the conclusion that, in the events which have occurred, the property destined by the will to the children of the second marriage, whilst still affected to the extent of one-half of its income by the provisions of the will, devolved upon the legal heir of the testator subject to the legal claims of his widow and children which would have been competent if he had died intestate.
It must, I apprehend, in all cases be a question of circumstances how far a testator who has in his settlement excluded the legal claims of his widow and children, intended that exclusion to operate. He may expressly declare, or it may appear by plain implication from the terms of the instrument that he intended the provision to operate, not merely in favour of persons taking under the will, but also in favour of his heirs succeeding in the event of intestacy. There may be, and there frequently is, a general scheme of settlement of a man's whole property which contemplates that some relatives shall upon his decease take the interest which the law gives them as heirs ab intestato, and that others shall take the provision which the deceased has made for them. It is unnecessary for the purposes of this case to consider what would be the effect of an express provision to the widow or to one child coupled with an exclusion of their legal claims. The exclusion would certainly operate in favour of all those beneficiaries who took provisions of the deceased, and it would also operate in favour of those taking ab intestato if it were reasonably apparent that denying effect to it would disturb the scheme which the deceased contemplated.
The learned Judge who delivered the opinion of the Court, by some oversight, made use of the expression, “There are no heirs or personal representatives other than the wife and children.” I need hardly explain that the widow is neither the heir nor the personal representative of her husband. The child, on the other hand, in so far as it has a claim of legitim, is a creditor, and is not the heir of its father, but has besides a right of inheritance. The father may in various ways exclude its claim of legitim, but he cannot take away its right of inheritance except by making an effectual conveyance or bequest of his estate to another. With these observations I concur in the opinion of the learned Judge, and in his conclusion “that the residue, in so far as consisting of personal estate, is subject to the usual threefold division, and that the residue of the heritable estate is subject to terce.” Although the questions submitted in the special case do not expressly raise the point, I think the interlocutor ought to contain a declaration that the appellant is entitled to her legitim.
I have not thought it necessary to refer to Pickering v. E. Stamford, 3 Vesey 332, Gurly v. Gurly, 8 Cl. & F. 743, or to any of the other English cases which were cited by the Lord Advocate in his argument for the respondent. These authorities, although they may have an apparent affinity to, do not directly bear upon the question raised in this appeal, which relates to the sense in which certain expressions were used by a Scottish testator, having due regard to the nature of the rights with which he was dealing as these exist in the law of Scotland. The rights given to an English widow by the Statute of Distributions differ materially from a Scottish widow's claims of terce and jus relictæ, and an English child possesses no right analogous to a Scottish child's claim of legitim.
I am of opinion that the interlocutor appealed from ought to be affirmed, with the declaration that the appellant's (Mrs Naismith's) right to have her claim of legitim satisfied out of the fund in medio is not barred by the terms of her father's settlement. In terms of the agreement embodied in the special case both parties must have their costs of this appeal out of the funds in medio.
As pointed out by that noble and learned Lord, the Court has held that no vesting of the estate took place in the children of the second marriage who survived the testator. He contemplated that his whole estate should be given to those children, but he had made a provision that the payment should be made only if they survived majority. They died in minority, and there is no ulterior destination. In these circumstances the Court has held that the testator died intestate in regard to the estate which is now the subject of this appeal.
The sole question is as to the effect of the clause by which the testator provided and declared that “the provisions hereby made for my wife and the children of our present
Page: 976↓
Suppose the testator had expressly said, in order to benefit the children of my second marriage and leave them the whole estate, I provide that the claims of legitim and jus relictæ shall be barred. If he had expressly stated that his purpose was to benefit his children, and it turned out that he died intestate, as the testator has done in this case, I think there can be no question that a clause of that kind, excluding the rights of the widow and children, would have been of no effect. But although that is not expressly said I hold it to be clearly there by implication. The true meaning of the clause, excluding the rights of the widow and children, is to protect the provisions in the settlement, but if those provisions entirely fail it appears to me that by direct implication the declarations in regard to the rights of the widow and the children fail also.
I will only add that it appears to me that the principle to which the House, affirming the decision of the Court below, is now giving effect, is one which is established in the law of England. The Lord Advocate in the able argument which he submitted to the House referred to a case which my noble and learned friend Lord Watson has also already noticed, namely, Pickering v. Lord Stamford, I find that it was there decided by the Master of the Rolls in 1797, following a decision by Lord Cowper, that “where a testator had given to his wife that provision which he meant to be a satisfaction for any claim she might have against the other objects of his bounty, if by any accident those objects should be unable to claim the benefit of that exclusion, no other person should set it up against the widow. That seems to me to be exactly the principle to which the House is now giving effect; and I think the passage to which the Lord Advocate also referred in Williams on Executors, at page 1360, states the rule with accuracy and great clearness. It is true that in this case the claims to legitim and jus relictæ are of a different character from a mere benficiary right, as my noble and learned friend Lord Watson has pointed out; but the question is not one as to the nature of the claim, whether it is a right given by common law, a right such as jus relictæ or legitim where there is a jus crediti, or a right of succession under the Statute of Distributions or otherwise. In either case the purpose which the testator has in view is to exclude the claims, whatever may be their nature or origin and foundation, in order to benefit others. If the benefit to those others is entirely to fail, it is clear that in conformity with the English decisions, and with sound principle, the exclusion of the right, whatever be its character, also fails, for the exclusion of the right was provided only to protect and enlarge the purpose of the testator in making his testamentary provisions, whereas he died intestate.
My doubt arises upon the particular character of jus relietœ, and from a consideration that under the decision appealed from the widow takes both the provision made for her by her husband in bar of her legal right and also her jus relictæ. I need not repeat what has been said by my noble and learned friend Lord Watson as to the nature and incidents of the jus relictæ. I will only observe that it is totally different from a share of the deceased's estate as one of his heirs in mobilibus, and it exists equally whether the deceased has died testate or intestate, and may be asserted equally against testamentary heirs and against statutory heirs in mobilibus. For this reason the English case Pickering v. Earl of Stamford cited by the Lord Advocate does not seem to me to support his argument. In that case it was held that a widow was not deprived of the share in her husband's intestate estate to which she is entitled under the English Statute of Distributions by a clause of exclusion in his will, the dispositions of which have failed and resulted in an intestacy. That was decided on the ground that a person cannot alter the legal succession to his intestate estate except by giving it to somebody else, which ex hypothesi he has not done. Indeed, the case of Pickering v. Stamford contains one sentence which is adverse to the argument. The nearest analogy in English law to jus relictæ is a widow's right to dower under the old law, which was independent of any question of intestacy, but which might be barred in the same manner and to the same extent as jus relictæ by the husband's disposition. Lord Alvanley says—“If a man devises his real estate from his heir after giving his widow a provision in lieu, satisfaction, and bar of dower, and the devisee dies in the lifetime of the devisor, is there any doubt that the heir would take the estate and bar the widow of her dower? That is not doubted.” That sentence I believe to express the doctrine of English law.
Page: 977↓
The real question seems to me to be whether the testator must be presumed to have purchased his widow's jus relictæ for the benefit of his particular disponees only or for the benefit of his estate generally, and it appears to me to be one of those questions which may be decided either way without infringing either principle or authority. The testator has made a complete disposition of the capital of his estate in a certain contingency only, and has made no disposition in the event of that contingent gift failing. I do not know why he should not be deemed to have contemplated the fuilure of the contingency and to have elected in that event to die intestate. I understand, however, that all your Lordships agree in the result with the learned Judges in the Court of Session, and I need scarcely say that in these circumstances the decision is most likely to be in accordance with sound principle and the presumed intention of the testator. I therefore concur in the order proposed.
Appeal dismissed, with the declaration that the appellant Mrs Naismith's right to have her claim of legitim satisfied out of the fund in medio is not barred by the terms of her father's settlement.
Counsel for the Appellants— J. B. Balfour, Q.C.— P. Balfour. Agents— A. & W. Beveridge, for Carmichael & Miller, W.S.
Counsel for Respondent—The Lord Advocate (Graham Murray, Q.C.)— A. S. D. Thomson. Agents— Grahames, Currey, & Spens, for A. C. D. Vert, S.S.C.