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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Halliburton and Others [1884] ScotLR 21_686 (26 June 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0686.html Cite as: [1884] ScotLR 21_686, [1884] SLR 21_686 |
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Page: 686↓
A testator by his settlement conveyed to trustees his whole estate, heritable and moveable, and directed them after payment of his debts to dispone, convey, and make over to B. H., “my youngest surviving daughter, and her heirs and assignees, the whole of the residue and remainder of my estates, heritable and moveable (the whole of the other members of my family having already been provided for by me).” The testator had been twice married, and had children by both marriages, B. H. being a child of the second. He was predeceased by B. H. unmarried and intestate. Held that her heirs, the other children of the second marriage, took the bequest as conditional institutes.
This was a Special Case as to the construction of the trust-disposition and settlement of John Halliburton, bookseller in Coldstream. By this deed the testator conveyed to trustees his whole estate, heritable and moveable, for the following purposes, viz.—First, that they should pay his just and lawful debts; and “secondly, that my trustees shall, as soon after my decease as may be, dispone, convey, and make over to Barbara Halliburton, my youngest surviving daughter, and her heirs and assignees, the whole of the residue and remainder of my estates, heritable and moveable (the whole of the other members of my family having been already provided for by me); and declaring further, that the provisions already made by me to my other surviving children are hereby declared to be in full satisfaction of all claims of legitim or executry competent to them, or any of them, by or through my decease, in any manner of way.” The testator, who was a widower at the date of his death, had been twice married. At the date of the settlement (March 6, 1874) there were surviving of the first marriage one son and one daughter, and of the second marriage four daughters, one of whom was the said Barbara Halliburton; she died on 3d October l881 unmarried and intestate, predeceasing the testator, who died on 9th October 1883. A question thus arose whether or not the bequest in favour of the said Barbara Halliburton and her heirsand assignees had lapsed through her predecease, and this Special Case was accordingly presented.
The first parties were the trustees under the settlement; the second parties were the heir-at-law and next-of-kin of the testator, who maintained that the bequest had lapsed and fallen into intestacy; the third parties were the sisters of the full blood of Barbara Halliburton, who, as her heirs both in heritage and moveables, maintained that the bequest had not lapsed, and that they were entitled to the residue as conditional institutes.
The questions stated for the determination of the Court were—“(1) Did the bequest of residue
Page: 687↓
in favour of Barbara Halliburton and her heirs and assignees lapse by her predeceasing the testator, and does the residuary estate, so far as heritable, now fall to be conveyed by the first parties to the heir-at-law of the testator, and so far as moveable to his next-of-kin? or (2) Under the destination to Barbara Halliburton and her heirs and assignees, do her sisters, parties hereto of the third part, take the benefit of the bequest of residue in her favour as conditional institutes?” Argued for the parties of the second part — Although the general rule was that where there is a mortis causa disposition to “A, his heirs and assignees,” failing A, the disponee, his heirs will take, yet the words “heirs and assignees” are not voces signatœ, but may be controlled by the context. They were here controlled by the words in the parenthesis which followed—(“the whole of the other members of my family having been already provided for by me.”) The deed was simply of the nature of a bond of provision in favour of the daughter— Findlay v. Mackenzie July 9, 1875, 2 R. 909; Donald's Trustees v. Donald,&c., March26, 1864, 2 Macph. 922. In any view, there was a presumption against conditional institution as regarded the heritage.
Argued for the parties of the third part — The general rule should be applied, as there were no specialties— Maxwell v. Maxwell, Dec. 24 1864, 3 Macph. 318; Russel v. Russel, 1769, M. 6372; Inglis v. Miller, 1762, M. 8084; Boston v. Hors—burgh, 1781, M. 8099.
At advising—
The deed is exceedingly simple in its terms, and there is not much means of obtaining light on the question except the words themselves in the clause under construction. The testator conveys his entire estate to trustees for the purpose, in the first place, of paying his debts, and then the only other purpose is stated in the following terms:—“That my trustees shall, as soon after my decease as may be, dispone, convey, and make over to Barbara Halliburton, my youngest surviving daughter, and her heirs and assignees, the whole of the residue and remainder of my estates, heritable and moveable (the whole of the other members of my family having been already provided for by me); and declaring further that the provisions already made by me to my other surviving children are hereby declared to be in full satisfaction of all claims of legitim or executry competent to them, or any of them, by or through my decease, in any manner of way.” The rest of the deed consists entirely of what may be called mere clauses of style.
Now, as a general rule, where there is a conveyance to a person named, and his or her heirs and assignees, or a conveyance to trustees in these terms, in the event of the person dying before the granter the heirs of the grantee take. That rule is applicable to mortis causa deeds as well as to others, but it is a rule not without exceptions of course, and examples of such exceptions have been brought under our notice. The most important and recent of these cases is that of Findlay v. Mackenzie, and if this case had at all resembled in its circumstances the case of Findlay v. Mackenzie, I would have been prepared to follow the decision there pronounced; but the difference between the two cases is very material. In Findlay v. Mackenzie the testator had one daughter who had been amply provided for by his marriage-contract, and he had no other object of affection except his wife, and therefore he conveyed to her his whole estate; and the terms of the conveyance are similar to the present so far as regards the person to whom the gift was made, for it is to her “and her heirs and assignees whomsoever;” but then in the same clause the testator had expressed himself in this way—“it is my wish to provide further for my wife… in the event of her surviving me, over and above the provisions already conceived in her favour in an antenuptial contract of marriage,” and further, he had nominated his widow to be his sole executrix. From these expressions the Court came to the conclusion that the object of the testator was to make a gift to his wife only in the event of her surviving him, and that intention was gathered from the words in which the gift was made. But here there are no such expressions to guide us. No doubt there follows this statement, in a parenthesis, “the whole of the other members of my family having been already provided for by me,” and therefore we must take that as a fact, and a fact very particularly present to the mind of the testator. We have no information as to what these provisions were, and we are not entitled to assume that they were contained in bonds of provision, or that they were of such a nature as not to pass to heirs and assignees. The probability is that they were not of that kind at all. The other daughters of the testator were married, and it is exceedingly probable that their provisions were settled upon them by marriage-contract. His sons were well advanced in life, and therefore most probably engaged in trades or professions, and the money expended in establishing them in business would very naturally form the provisions to them. They may have been of a different nature, but we cannot speculate as to that. We have the simple fact that in the opinion of the testator his other children had been sufficiently provided for, and therefore he gives the balance to his single daughter Barbara, who was apparently living in family with him, and he gives it also to her
Page: 688↓
The Court pronounced this interlocutor:—
“Find and declare that under the destination to Barbara Halliburton, and her heirs and assignees, in the trust-disposition and settlement of the late John Halliburton, her sisters, parties of the third part, do, in consequence of Barbara Halliburton predeceasing the testator, take the benefit of the bequest of residue as conditional institutes, and decern.”
Counsel for First and Second Parties— Martin. Agents— Bruce & Kerr, W.S.
Counsel for Third Parties— Darling. Agents— W. N. Fraser, S.S.C.
