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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan's Trustees v. Dalziel's Trustees [1867] ScotLR 5_325 (28 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0325.html Cite as: [1867] ScotLR 5_325, [1867] SLR 5_325 |
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Page: 325↓
A testator appointed B his sole executor and universal legatee, under burden of paying to C, at the first term after the testator's death, a legacy of £4000; but if C died without lawful issue, then half of the “legacy was to return and belong to B,” his heirs, &c., and C having the power to dispose of the other half as she chose. When C died she had got payment of the legacy from B, who predeceased her, and the of remainder from the trustees; and she left a will. Claim by B's trustees against C's trustees for £2000, founded on the provision, in the testator's will, of return to B, repelled, and held that, by payment of the legacy to C, the substitution in favour of B was evacuated. Opinion that even without actual payment to C, the substitution in B's favour would have been defeated by C's settlement.
Mrs Craig died in 1826, leaving a trust-disposition and settlement whereby she conveyed to her son Dr Craig Buchanan, his heirs, successors, or assignees whomsoever, heritably and irredeemably, all and sundry lands, heritages, tenements, and others as therein particularly set forth; and she thereby nominated and appointed him to be her sole executor and universal legator; but always with and under the burdens and conditions therein mentioned, and, inter alia, under a burden expressed in the following terms:—“As also under the burden of paying to my daughter, Jane Craig, and her heirs, the sum of £4000 sterling, at the first term of Whitsunday or Martinmas that shall happen after my death, with interest thereof from and after the said term of payment during the non-payment of the same, but declaring that if the said Jane Craig shall die without lawful issue, then the half of the said sum of £4000 shall return to and belong to the said George Craig Buchanan and his foresaids, but it shall be in the power of the said Jane Craig to dispose of the other half of said sum in any way she shall think proper.”
Dr Buchanan died in 1842.
Miss Jane Craig Dalziel died in 1866 without leaving lawful issue. She left a general disposition and settlement, conveying to trustees the whole property which should belong to her at the time of her death. Previous to her death, the whole amount of the said legacy of £4000 had been paid to her by Dr Buchanan or by his trustees. Dr Buchanan's trustees now brought this action against Miss Dalziel's trustees, pleading that, in terms of the provisions in the settlement of the late Mrs Mary Craig, the sum of £2000 was payable on the death of Miss Jane Craig Dalziel by her representatives to the pursuers, and was due, with interest from her death.
The defender pleaded—(1) The pursuers have no title to sue; (2) no right in or to the £2000 sued for having vested in the late Dr Craig Buchanan during his life, no such right has been carried to the pursuers by his trust-disposition and settlement; (3) the whole sum of £4000 provided to the late Miss Craig Dalziel by her mother's settlement having been paid to her during her life, formed part of her estate at her death, and is conveyed to
Page: 326↓
the defenders by her general disposition in their favour; and (4) assuming that Miss Craig Dalziel was precluded by the clause of return in her mother's settlement from disposing of one-half of the sum of £4000 provided to her, the said clause was a simple substitution in favour of Dr Craig Buchanan, which was evacuated by his predeceasing his sister. The Lord Ordinary ( Ormidale) pronounced this interlocutor:—
“Finds it is admitted that the late Dr Buchanan, whose testamentary trustees are the pursuers of this action, died on the 12th of April 1842, and that Miss Jane Craig, the party first entitled to payment, and who did receive payment of the legacy of £4000 in question, did not die for many years thereafter, viz., not till the 18th of July 1866: Finds, with reference to these facts, that no such right or claim as that now founded on, and sought to be enforced by the pursuers in the present action, ever vested or could have vested in the said Dr Buchanan, or has been transmitted from him to the pursuers as his trustees: Therefore sustains the defenders' two first pleas in law; and in respect thereof dismisses the action, and decerns: Finds the defenders entitled to expenses, &c.
Note.—Whether the clause of return in question is to be considered of the nature of a simple substitution, which was evacuated by Dr Buchanan predeceasing his sister Miss Jane Craig, and was defeasible and defeated by her ( 3 Ersk. 8, 45, and cases of Lowes v. Laurie, 13th February 1736, 5 Brown's Suppl., p. 161; and Mackay v. Campbell's Trustees, 13th January 1835, 13 Sh. 246), or rather of the nature of a gift having a condition attached to it, which could not be defeated gratuitously, as seems to have been ruled in the case of Johnstone v. Irvine, 22d June 1824, F.C., need not be inquired into or determined in this process, if the Lord Ordinary be right in holding that, in no view of that matter, did any right under and in virtue of the clause of return vest in Dr Buchanan, or has been transmitted by him to his trustees, the pursuers of this action. If Miss Jane Craig had left lawful issue, and for anything that appears or is stated to the contrary, it was impossible to say that she might not, down to her death, it would have been clear that no right whatever could have accrued to Dr Buchanan, or any one else, under the clause of return in this case. Till the death, then, of Miss Craig without lawful issue, it appears to the Lord Ordinary that Dr Buchanan neither had nor could have had anything more, in the most favourable view of the case for the pursuers, than the hope of a right or spes successionis, and if so, it necessarily follows, that Dr Buchanan having died before Miss Craig, the alleged right now founded on and sought to be enforced by his testamentary trustees, never vested in or could have been transmitted by him to them— Fotheringham v. Home, 7th Feb. 1693, Mor. 5764.
The pursuers reclaimed.
Cook for them.
Kinnear ( Clark with him) in reply.
Lord President — I do not think that in disposing of this case we have anything to do with the question of vesting, and therefore I do not see the application of that part of the Lord Ordinary's interlocutor which finds that there was no right vested in Dr Buchanan or transmitted by him to the pursuers, because, if the construction of the clause we are dealing with is that which is contended for by Mr Cook, it does not matter whether the right vested or not. There would be an absolute obligation to repay in the event which has occurred. But the question is, whether there is in the clause any thing partaking of the nature of a clause of return in the proper sense, or whether there is any thing that can have an effect different from a mere substitution in moveables?
It is necessary to keep in view that this clause occurs in a deed of settlement of the entire estate of Mrs Craig. She conveyed her whole estate to Dr Buchanan, and appointed him her sole executor and universal legatee, putting him, however, under certain burdens, and, amongst others, under burden of payment of this £4000 to her daughter, Miss Craig. It is said that this payment is directed to be made sub modo, under a condition that in a certain event one-half of it shall return. Now, as the legacy could not be paid until after the death of the testator, it could not return to her, and accordingly it is said that it is to return to her executor or universal disponee. I think I may say that there is no example of such a clause of return. The thing was never heard of before. It seems to me that whatever it may be called, and however much the word return may be used in clauses of this kind, it is impossible there can be a clause of return in such a position. If, in the event of a legatee dying without issue, a legacy is to go to a third party, that would be a substitution and nothing else. And if a sum of money left to a legatee is paid back to the executor, that too is nothing but a substitution. There is no distinction. In no case is it to be paid back to the granter, but to some one who is to get a part of the succession, and that is nothing but a substitution. The words of the provision bear out that view, for there is to be a payment to Miss Craig at the first term after the death of the testator of £4000, and then follow the words on which the argument turns [ reads clause]. It will return to him no doubt in this sense, that his is the hand that has paid it as executor, but it will belong to him not as executor, but as substitute legatee.
All that is quite plain. But it is said that these words more strongly indicate an intention to make this repayment a condition of the legacy, but it shall be in the power of the said Jane Craig to dispose of the other half of said sum in any way she shall think proper.” To my mind these words create no difficulty. They assume that what goes before is to have effect, i.e., that one-half is to return and belong to Dr Buchanan. Suppose this money had not been paid, but Miss Craig had died without issue, one-half would have belonged to Dr Buchanan, and one-half would have gone by her will; and, therefore, when this substitution was to take effect, the whole provision would have taken effect. But what has happened? The legacy was paid to Miss Craig, and, being paid to her, was necessarily mixed up with her own funds, and it is trite law when such a legacy is paid, the substitution provided in the deed is at once evacuated. On these simple grounds I think the defenders ought to be assoilzied. But I am not satisfied with the grounds of judgment in the Lord Ordinary's interlocutor. I think these ought to be varied.
Page: 327↓
Solicitors: Agents for Pursuers— Hill, Reid, & Drummond, W, S.
Agents for Defenders— A. & A. Campbell, W.S.
