Scottish Court of Session Decisions

This was a Special Case for opinion and judgment of the Court, the parties being as follows:—(1) The trustees of the late John Congreve, Esq., sometime of Flichity, of the first part; (2) Mrs Congreve, the widow, of the second part; (3) William John Congreve Mackintosh Congreve, the son, and his tutors, of the third part; (4) Francis Dora Congreve, the daughter, and her tutors, of the fourth part.

John Congreve, Esq., sometime of Flichity, died on the 16th November 1873, survived by his widow, and by two children, William Congreve Mackintosh Congreve, his only son, and Frances Dora Congreve, his only daughter. William C. M. Congreve was born on 19th September 1860, and Frances Dora Congreve on 10th June 1865. By antenuptial marriage settlement, dated 28th April 1859, drawn up and executed in English form, a sum of £6000 was settled by Mr Congreve in trust for payment of the income to himself during his life, and after his death for payment of £100 per annum to Mrs Congreve during her widowhood; and, subject to such payment, said £6000 was to be for behoof of the children of the marriage in such proportions as Mr Congreve should direct, failing which, equally among them, the share of each to be payable on his or her attaining 21 years of age, or in the case of daughters on marriage, and failing children of the marriage, ultimately to Mr Congreve's assignees or next of kin; with power to the trustees, with the consent of the spouses or the survivor, to raise a sum not exceeding one-half of each child's expectancy for its advancement in life; and lastly, the unapplied income is to be accumulated for the children. This sum of £6000 was duly paid to and continues to be held by the separate trustees appointed to carry out the purposes of the marriage settlement. The legal rights of the widow and children are not discharged or renounced in the settlement. In addition to the annuity of £100, Mr Congreve, by bond of annuity, of even date with the antenuptial settlement, bound himself, his heirs, executors, and representatives whomsoever, to pay to Mrs Congreve a further annuity of £200 per annum, in case she should survive him, and while she should remain unmarried; and disponed a portion of the estate of Flichity in security. On the sale of Flichity after mentioned, the security over that estate was discharged, but the personal obligation against Mr Congreve and his representatives continues to subsist. By his trust disposition and settlement, dated 12th November 1864, with codicil thereto, dated 10th February 1870, Mr Congreve conveyed his whole heritable and moveable estate to trustees, in trust for the purposes therein mentioned. He also appointed his trustees executors and tutors and guardians to his children. The purposes of the trust-disposition are ( 1) For payment of just and lawful debts, & c,: (2) For payment of two specified legacies of £100 each; (3) For payment of any other legacies he might instruct by any codicils or writings under his hand; (4) That the trustees should immediately after the testator's death give to his widow possession of the mansion-house of Flichity and furniture therein belonging to him at the time of his death, free of any rent whatever, until his son should marry or

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attain 25 years of age, and thus become entitled to use said house and furniture, when in lieu and place thereof the said widow was to receive £300 to purchase furniture, and £50 per annum in name of house-rent. By the fifth purpose of the trust the trustees are directed, out of the produce of the testator's personal estate, to make payment to any children he might leave, other than the heir who should succeed to the estate of Flichity as after mentioned, of the sum of £2000 sterling each, payable to them upon their respectively attaining the age of 25, or, if females, being married, whichever of these events should first happen. By the sixth purpose of the said deed the trustees are directed, upon the testator's son, William Congreve Mackintosh Congreve, attaining the age of 25 years complete, and in the case of a daughter succeeding, on her attaining said age of 25 years complete or being married, whichever of these events shall first happen, to execute a disposition and deed of entail of his estate of Flichity (but always with and under the burden of an annuity of £200 provided to the said Catherine Ann Mackintosh or Congreve, his wife, in case she should survive him, and while she shall remain unmarried, by bond of annuity dated the 28th, and recorded in the General Register of Sasines at Edinburgh the 30th days of April 1859), in favour of the said William Congreve Mackintosh Congreve, and the heirs whatsoever of his body, whom failing, to a certain series of heirs therein mentioned, including the heirs-female to be procreated of the testator's body. Lastly, by the said deed the trustees are directed to hold the residue and remainder of the testator's estate, heritable and moveable, thereby conveyed, or the prices and produce thereof, in trust for the use and behoof of the said William Congreve Mackintosh Congreve and the heirs whatsoever of his body, and failing the said William Congreve Mackintosh Congreve by his death before attaining the age of 25 years, without heirs of his body, for the use of a series of heirs specified. It is further provided by this purpose of the trust that on said William Congreve Mackintosh Congreve attaining the age of 25 years, or failing him in manner foresaid,; or other heir-male or female of the testator's body in the order therein expressed attaining the said age of 25 years, or in the case of females being married, whichever of these events shall first happen, that they, the said trustees, shall forthwith, but not sooner, dispone, convey, and make over to the said William Congreve Mackintosh Congreve, and failing him as aforesaid, in favour of any other heir male or female of the testator's body, in the order therein expressed (the said order being the same as in the destination of the intended entail of Flichity) on their attaining the age of 25 years, or, in the case of females, being married as aforesaid, the said residue and remainder of the testator's means and estate and all the rights and securities thereof vested in the said trustees. Further, the testator confers various powers upon the trustees for the administration of the estate, and reserves power to himself to alter, innovate, or revoke. On the 10th of February 1870 the testator executed a codicil in the following terms:—“I, the within-designed John Congreve, do hereby direct my trustees within named, or the acceptors or acceptor and survivors or survivor of them, to sell my estate of Flichity so soon after my death as they can effect such sale with advantage, and to invest the proceeds of sale in British Government stocks, or in heritable or real securities, until such time as they can find an eligible permanent investment in the purchase of another landed estate with a good house thereon, and yielding a fair agricultural rental; and I direct my said trustees or their foresaids, on my son William Congreve Mackintosh Congreve attaining the age of twenty-five years complete, to convey the said estate, so to be purchased, in strict entail to him, and failing him to the series of heirs mentioned in the within-written trust-disposition and settlement, as applicable to the entail of Flichity therein contemplated; and farther, I hereby direct my said trustees, after the purchase of said estate, and while it remains vested in my said trustees, to allow my wife, the within-designed Catherine Ann Mackintosh or Congreve, the free use of the principal mansion on the said estate, with the gardens, policies, and pleasure-grounds connected therewith; and until such estate is purchased, I direct my said trustees and their foresaids, out of my general estate to allow my said wife the sum of £100 per annum in name of house rent, and also an annuity of £200 per annum in addition to the £300 per annum already settled on her, and when the said trustees come to divest themselves of said estate to be purchased as aforesaid in terms of the destination above written, I direct them to burden the said estate with a like payment of £100 per annum, and also the said annuity of £200 in addition to the said £300 per annum settled on my said wife, said annuity of £100 to be payable during her life to my said wife in name of house rent; and I hereby further direct my said trustees and their foresaids to allow my said wife the free use of all my furniture and household plenishing, including plate, books, and wines, to be used and enjoyed by her for her liferent use allonarly until such time as the said trustees divest themselves of said estate in terms of the said destination, when they shall give over to the disponee of the estate to be purchased as aforesaid, the house gardens, and policies, as well as the whole of said furniture and plenishing, but in lieu to my said wife of said furniture and plenishing, they shall burden the said estate with the payment to her of the sum of £600; and further, I hereby direct my said trustees or their foresaids to make payment of the sum of £10,000 sterling to such of my children who shall not, in terms of the destination above referred to, succeed to the said estate to be purchased as above directed, payable to them in such proportions and at such times as I shall direct by any writing or direction under my hand, however informal, and failing such writing, then equally share and share alike, payable, if sons, on their attaining the age of twenty-five years complete. and, if daughters, on their attaining said age or being married, whichever of these events shall first happen, but declaring that the provisions of my daughters shall be settled on them only in liferent and on their children in fee, whom failing to revert to the residue of my estate; and it is hereby declared that in the event of my said estate of Flichity being sold for a less price than £55,000 all the provisions under this codicil shall suffer a proportional abatement; and I do hereby alter and revoke the foresaid trust-disposition and deed of settlement, but only in so far as the same is inconsistent with the directions contained in this codicil and not otherwise.” In 1871 the testator himself sold his estate of Flichity for £46,000, and also sold

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a large part of the furniture of the mansion-house. He did not set apart the price of his estate; but allowed it to be mixed with his general funds, which were found at his death to be invested in a variety of stocks and securities. No part thereof was invested in Government stocks or in heritable securities. The estate of Flichity was burdened with debt at the time of the sale to the extent of £10,940. The amount of the trust-estate is expected to be about £36,000, besides about £3000 of heritable estate in England, and exclusive of the £6000 held by the marriage settlement trustees.

The second party maintained—(1) That in the event of her electing to take her rights under the foresaid trust-disposition and settlement and codicil, she was entitled to an annuity of £200 per annum in addition to the £300 per annum settled on her at her marriage as aforesaid, and also the sum of £100 per annum until an estate should have been purchased, and thereafter to the free use of the principal mansion on the said estate, with the gardens, policies, and pleasure-grounds connected therewith, so long as they remain vested in the trustees, and when the trustees come to divest themselves in terms of the said codicil, to have the said annuities of £100 and £200 per annum made burdens on the said estate in addition to the said £300 per annum settled on her as aforesaid; and further, to the free use of all the testator's furniture and household plenishing, including plate, books, and wine, for her liferent use, until the trustees shall divest themselves of the said estate in terms of the codicil, and then to the sum of £600 in lieu of furniture and plenishing; or otherwise, in the event of its being found that the first parties are not bound to purchase an estate to be entailed in terms of the said codicil, she was entitled to an annuity of £200 per annum in addition to the £300 already settled on her, and also to an annuity of £100 in name of house rent during her life, and to the use and enjoyment of the whole furniture and household plenishing belonging to the testator at his death, including plate, books, and wine.

It was maintained on behalf of the third party—(1) That in the event of its being found that the first parties were bound to invest the free proceeds of the sale of Flichity in the purchase of a landed estate, they were bound, on his attaining the age of twenty-five years complete, to convey the same in strict entail to him and the series of heirs mentioned in the trust-disposition and settlement, and that the provisions with which the said estate should be burdened in terms of the codicil should suffer an abatement in proportion to the amount by which the price obtained for Flichity was less than £55,000; (2) That if it should be found that the direction to purchase such estate had been evacuated by the act of the testator in selling Flichity, the whole provisions of the trust-disposition and settlement, and of the codicil, with the exception of those regarding the powers and liability of the trustees, of those for payment of debts, and of the two legacies above mentioned of £100 each, and of the provision for the disposal of the residue, must be held to have been evacuated likewise, and that the third party was entitled to the whole residue of the estate after payment of debts and of the said two legacies; (3) in the event of its being held that the direction to purchase an estate had been evacuated, but that the other provisions of the trust-disposition and settlement and of the codicil subsist, except in so far as the trust-disposition was revoked by the codicil, it was maintained in behalf of the third party, (1) that the provision of the codicil for payment of £10,000 to the children who should not succeed to the estate to be purchased was not in addition to, but in substitution for, the provision of the trust-disposition for payment of £2000 each to any children the testator might leave other than the heir who should succeed to Flichity; and 2. that the third party was entitled on his attaining the age of 25 to payment of one-half of the said sum of £10,000: that the fourth party was entitled, upon her attaining the said age of 25, or being married, to a liferent only of the remaining half, and that in the event of her dying without having lawful issue, either before or after attaining the age of 25, the fee of the remaining half reverted to the residue of the trust-estate, and would become payable to the third party and the heirs whatsoever of his body, in terms of the provision for disposal of the said residue.

It was maintained on behalf of the fourth party—(1) That in consequence of the testator having himself sold the estate of Flichity, and left no testamentary directions as to the application of the price, the provisions of the trust-deed and codicil, other than those relating to the payment of debts and legacies, fell in toto, and that the free residue fell to be dealt with on the footing of intestacy, two-third parts of the personal estate going as legitim and dead's part to the third and fourth parties equally between them, and the remaining one-third part to the second party: (2) That in the event of its being held that the direction in the codicil to buy a landed estate fell, but that the rest of the settlement stood, except in so far as the trust-deed was revoked by the codicil, she was entitled, in terms of, and at the time, and subject to the conditions contained in the trust-deed and codicil ( first), to the sum of £2000, provided by the fifth purpose of the trust-deed to each of the children of the marriage, other than the heir who should succeed to the estate of Flichity, to the exclusion of the third party; and ( secondly), to the liferent of the provision in the codicil of £10,000 in favour of the children who should not succeed to the estate therein directed to be purchased, also to the exclusion of the third party, or at least to the latter of these provisions; ( thirdly), that in the same event, and if the third party was held entitled to share in these provisions, the fourth party was entitled 1, to a sum of £2000, and 2, to the liferent of one-half of the said sum of £10,000, all in terms of the said trust-deed and codicil.

The first parties maintained that the directions of the codicil in regard to the purchase of a landed estate have not been revoked, and that they were bound to fulfil the same.

The claims were stated for the second, third, and fourth parties under reservation of their right to claim legitim or jus relictæ if so advised, after the true construction and effect of the trust-disposition and settlement had been judicially ascertained.

The opinion and judgment of the Court was desired on the following questions of law: “(1) Have the provisions contained in the fourth, fifth, sixth, and seventh purposes of the said trust-disposition, and the whole provisions of the codicil thereto, been evacuated by the act of the testator in selling the estate of Flichity? (2) Does the

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provision for the disposal of the residue subsist notwithstanding the said sale, and is the third party entitled, in terms thereof, to the whole residue of the trust-estate, after payment of debts and of the said two legacies of £100 each? (3) If the first question should be answered in the affirmative, are the third and fourth parties entitled equally between them to two-third parts of the free moveable estate as legitim and dead's part, and is the second party entitled to the remaining one-third party jure relictæ? (4) If neither of the first two questions should be answered in the affirmative, are the first parties bound to invest the free proceeds of the estate of Flichity in the purchase of a landed estate, and on the said William Congreve Mackintosh Congreve (the third party hereto) attaining the age of twenty-five years complete, to convey the said estate to be purchased in strict entail to him and the series of heirs mentioned in the trust-disposition and settlement, all in terms of the codicil of 10th February 1870? (5) Should it be found that the first parties are not bound to purchase an estate in terms of the codicil, is the fourth party entitled, on her attaining the age of twenty-five or being married, 1, to a sum of £2000 under the fifth purpose of the trust-disposition, and 2, to the liferent of the whole sum of £10,000 provided by the codicil to the children who shall not succeed to the estate thereby directed to be purchased, or to either of the said provisions, to the exclusion of the third party? or, (6) Is the third party, in the same event, entitled to a similar payment of £2000, and to a payment of £5000, being one-half of the said provision of £10,000, or to either of the said provisions? (7) Is the second party, in the event of her electing to claim her rights under the said trust-settlement and codicil, entitled to an annuity of £200 in addition to the £300 per annum settled on her at her marriage, and also to the sum of £100 per annum in name of house-rent until an estate shall have been purchased, and thereafter to the free use of the principal mansion-house on such estate, with the garden, policies, and pleasure grounds connected therewith, so long as they remain vested in the trustees, and when the trustees come to divest themselves, to have the said payment of £100 and £200 per annum made burdens on the said estate, in addition to the said £300 per annum; and further, to the liferent of all the testator's furniture and household plenishing, including plate, books, and wines, until the trustees shall divest themselves of the estate, in terms of said codicil, and then to the sum of £600 in lieu thereof? (8) In the event of its being found that the first parties are not bound to purchase an estate, is the second party entitled, upon electing to claim her rights under the said trust-settlement and codicil, to an annuity of £200 per annum in addition to the £300 already settled on her, and also to the foresaid annuity of £100 in name of house-rent during her life, and to the use and enjoyment of all the testator's furniture and household plenishing, including plate, books, and wine?”

At advising—