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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paxton's Trustees v. Paxton [1886] ScotLR 23_830 (16 July 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0830.html Cite as: [1886] SLR 23_830, [1886] ScotLR 23_830 |
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Page: 830↓
(Before Seven Judges.)
[
It is a settled rule of construction of settlements (subject to being controlled by the evident intention of the testator) that when a gift, whether of a legacy or of residue or of corporeal moveables, is given to several persons in language importing a severance of their shares, each is entitled to his share only, and in no event to more, and therefore there is in the event of one of them predeceasing the testator no room for accretion.
Therefore where a testator divided one portion of his estate by leaving a special legacy to a legatee, theremaining portion “to be equally divided between my late wife's sisters J. A. and M. S., my late wife's brother R. S., and my late wife's niece J. S.,” and R. S. predeceased the testator— held that his share was undisposed of and fell to the testator's heirs in mobilibus.
James Paxton, Kilmarnock, died in January 1884 leaving a settlement executed in 1878, whereby he conveyed his whole property to trustees. By the second purpose thereof he there provided—“My trustees shall, as soon after my decease as they shall find convenient and practicable, divide the whole of my estate into two equal parts, and shall divide the one part among my brothers John and William, and my whole sisters and their respective families, share and share alike, the families of a deceased brother or sister taking their parent's share, whether such brother or sister shall have predeceased me or not; and shall divide the other part of my said estate as follows—£200 to my late wife's sister, Margaret Smith or Crabbie, in the event of her predeceasing me said sum of £200 to be paid to my sister Jane Paxton or Cowie, the remaining portion to be equally divided between my late wife's sisters, Jane Brown Smith or Aikman, Mary Ann Smith or Swanston, my late wife's brother Robert Smith, and my late wife's niece Jeannie Aikman Swanston; in the event of said Mary Ann Smith or Swanston predeceasing me, her portion to be equally divided amongst her surviving daughters.”
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The truster had three brothers, William who survived him, and George and John who both predeceased him and left issue. He had four sisters, Jane (Mrs Cowie), Agnes (Mrs Bunten) who survived him, Isabella (Mrs Stewart) who predeceased him leaving issue, and Mary Ann (Mrs Carswell) who also predeceased him leaving issue.
Robert Smith, who was the brother of the truster's deceased wife, and was mentioned in the settlement as above quoted, predeceased the truster and left no issue.
The trustees, in order to settle whether Robert Smith's share passed by accretion to Mrs Aikman, Mrs Swanston, and Jeannie Aikman Swanston (who had married John Taylor), orwhetherithad become intestate succession and fell to the truster's heirs in mobilibus, raised this multiplepoinding. Mrs Aikman, Mrs Swanston, and Mrs Taylor claimed the fund in medio, one-third to go to each, pleading—“The share of the testator's estate bequeathed to the said deceased Robert Smith having passed by accretion to the claimants, they are entitled to be ranked on the fund in medio in terms of their claim.”
The representatives in moveables of the truster pleaded that Robert Smith having predeceased the truster “the bequest in his favour lapsed, and the claimants, the truster's heirs in mobilibus, are entitled to the share of residue provided to the said Robert Smith.”
The Lord Ordinary (
Kinnear ) sustained the claim for Mrs Aikman and others.“ Opinion.—The claimants preferred are in the position of residuary legatees, sharing among them one-half of the residue after payment of two special legacies, and are not special legatees in separate and unconnected bequests. I do not think it doubtful that the testator intended that they should share among them the entire half of the estate bequeathed to them, to the exclusion of his own relations, to whom he had bequeathed the other half. It is equally certain that he did not intend to die intestate as to any portion of his estate. It appears to me to follow that the share which would have gone to Robert Smith had he survived the testator must be divided among the surviving legatees of that portion of the estate. It is admitted that this must have been the case if the testator had not directed that the half in question should be ‘equally’ divided among the legatees named. But it is said that the direction that the division shall be equal imports a separate legacy of an equal portion to each of the legatees, and not a joint legacy of the whole. But if it is clear that the testator intended his wife's relations whom he has named to take one-half of the estate to the exclusion of his own next-of-kin, it does not appear to me to affect the inference which must otherwise have been drawn from that intention, that he has expressed in words his desire to favour these legatees equally, instead of leaving that to be implied in the general direction to divide. The counsel for the other claimants founded on Torrie v. Munsie, and the cases of Rose and Paterson there cited, and maintained that these decisions established a rule of law by which accretion as among legatees of residue who are called nominatim is excluded by a direction to divide equally or proportionally. The only general rule that these cases appear to me to establish is, that where a testator intends a number of legatees who are conjoined in words, but not in the matter of their legacies, to take each a separate and distinct share of a fund as special legatees, one of such legatees can take no benefit from the death of another, and any share that may have lapsed must fall into residue or to the next-of-kin as the case may be. But whether in any particular case the legacies are separate and distinct so as to exclude accretion, is a question of intention to be determined according to the ordinary rules of construction. The case of Torrie is no authority for the construction of a will expressed in different terms. The cases of Robertson (Hume 273), Bannerman v. Bannerman ( 6 D. 1173), and Moir v. Moir (9 Macph.), shew that there is no rule of construction by which a direction for equal division must be held in itself to exclude accretion.”
The heirs in mobilibus of the truster reclaimed, and argued—The question arose not with regard to the pecuniary division of the estate into two equal parts, but with regard to a lapsed share of the shares into which one of these parts was divided, viz., Robert Smith's share. The Lord Ordinary had held that there was no canon to be applied but the intention of the particular testator, but the decisions had established a subcanon, to the effect that words importing severance in the division exclude joint taking of the gift, and therefore exclude accretion among the donees, and therefore that such words must be held to import the testator's intention that there must be no accretion, because each legatee was given a separate subject. The words “share and share alike” were synonymous with “equally between,” the words in this case, and both implied severance. The particular deed and state of the family was in favour of the reclaimer's contention, but the rule contended for was truly settled by authority, and the cases decided that where the shares were given “equally between” or share and share alike among the legatees, or in any words importing severance (in whatever proportions), there was no room for saying that the right of one donee was a burden on that of another and therefore no accretion—Stair, iii. 8, 27; Paterson, June 4, 1741, M. 8070 (also rep. in Elch. voce Legacy, 9); Rose, M. 8101; Wauchope, December 22, 1882, 10 R. 441. The case of Robertson v. M'Bean, Hume 273, was not quite consistent with the others, and would be founded on on the other side, but if capable of being used as an adverse authority it was inconsistent with those already quoted and with Torrie v. Munsie, 10 Sh. 597, which carried the doctrine beyond legacies and applied it to residue, and Tulloch v. Welsh, November 23, 1838, 1 D. 94 (where Paterson's case was referred to); Breadalbane, 3 D. 357 (Lord Medwyn); Hamilton, 16 Sh. 478. [The Lord President referred to Buchanan's Trustees, June 15, 1883, 20 S.L.R. 666, and to his own opinion (p. 669)—“I think it is very well settled by a series of cases that when a legacy in liferent or fee is given ‘in equal shares’ there is no room for accretion, while, on the other hand, when the gift is given ‘jointly’ then the presumption is in favour of accretion;” and pointed out that the case was additionally important because Robertson's case had been quoted in the argument, while Hume's Decisions had not yet been published when Torrie v. Munsie was decided]. The case of Buchanan seemed clearly in point, as were also these authorities—M'Laren on Wills, i. 678;
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Bell's Prin. 1882; M. Bell's Lectures, ii. 989; Menzies' Lectures (2d ed.) 500; Jarman on Wills, ii. 257; and Robinson and Fraser, 6 Ch. Ap. 696. Bannerman, 6 D. 1171 would be cited on the other side. It was an Outer House decision, and it was important to observe that it was itself arrived at by Lord Wood on the specialties of the deed there before him, and that he held (and soundly) that Robertson v. M'Vean was also a special case. Argued for Aikman and others—The question was one of intention, and there was no doubt that but for the word “equally” the reclaimers had no case. Now, that word did no more than the law would do without it. Torrie v. Munsie was decided in ignorance of Robertson v. M'Vean, which was not yet published, and one Judge expressly said he must follow Paterson and Rose, believing there was no authority hostile to these cases, and not observing the distinction between special legacies and residue there drawn. The rule was not a rigid one which would not yield to the testator's intention. Buchanan's case was not really adverse. Scott v. Scott, 5 D. 520 (Lord Medwyn and Lord Moncreiff); 2 Williams on Executors, 8th ed., 1467 and 1470; Begley, 3 D. 662. [The Lord Justice-Clerk referred to the session papers in Robertson's case, quoted infra in his Lordship's opinion.] Bannerman's case [supra cit.] was entirely in respondent's favour.
At advising—
By the second purpose the trustees are directed to divide the estate into two equal parts, one of which parts is to be divided among two of his three brothers and his three sisters, and their respective families, share and share alike, children taking their parents' share in the event of their parents predeceasing the testator. No question arises on the construction of this first portion of the second purpose.
The clause proceeds in the following terms:—The trustees “shall divide the other part of my estate as follows—£200 to my late wife's sister Margaret Smith or Crabbie; in the event of her predeceasing me, the said sum of £200 to be paid to my sister Jane Paxton or Cowie; the remaining portion to be equally divided between my late wife's sisters Jane Brown Smith or Aikman, Mary Ann Smith or Swanston, my late wife's brother Robert Smith, and my late wife's niece Jeannie Aikman Swanston.” Robert Smith predeceased the testator, and the question for decision is, whether his share of the fund directed to be equally divided between himself and three other persons passes to these other legatees by accretion, or is, in the event which has happened, undisposed of, and falls to the next-of-kin by reason of intestacy.
The legacy to the four persons named is expressly directed to be equally divided between them.
Now, there is a rule of construction settled by a series of decisions beginning in the last century, and coming down to the case of Buchanan's Trustees, June 12, 1883, 20 S.L.R. 666, to the effect that when a legacy is given to a plurality of persons named or sufficiently described for identification “equally among them,” or “in equal shares,” or “share and share alike,” or in any other language of the same import, each is entitled to his own share and no more, and there is no room for accretion in the event of the predecease of one or more of the legatees. The rule is applicable whether the gift is in liferent or in fee to the whole equally, and whether the subject of the bequest be residue or a sum of fixed amount or corporeal moveables.
The application of this rule may, of course, be controlled or avoided by the use of other expressions by the testator importing an intention that there shall be accretion in the event of the predecease of one or more of the legatees. But in this case there are no such expressions to be found. There is indication of a general intention that the estate should be equally divided between his own relations and his deceased wife's relations. But as regards the division between those of his wife's relations who are made legatees, there are no words or expressions indicating intention, except those contained in the clause specially under construction.
Much reliance was placed in the argument for the parties contending for the application of the doctrine of accretion, on the case of Robertson v. M'Vean, which was decided in 1819, and is reported by Hume [p. 273]. But in the face of the series of decisions already referred to, it is impossible, and would be most unsafe, to give any weight to a case so obscure and ambiguous, which was not known to the profession for twenty years after it was decided, the report of which seems to leave it in doubt whether it was decided on general principles or on specialties, and which has never been recognised in any of our treatises or books of practice, or in any subsequent judgment of the Court.
That is the opinion of the Court, but my brother on my right [the Lord Justice-Clerk] has an explanation to give of the case of Robertson which he will now make.
The decision is dated in 1819. But six years before, in 1813, Lord Balgray, as Lord Ordinary, had reported the case to the Court on various points, some of which were decided; but in regard to the claim to the share of Thomas Robertson, who predeceased the testator, his father, they remitted the case to the Lord Ordinary.
On the 17th November 1813 Lord Balgray found, “that from the terms of the general settlement executed by George Robertson, the share of Thomas Robertson, who predeceased his father, must be held as accruing to the respondent
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This interlocutor was allowed to become final; and it was not until after an interval of six years that the claimant renewed the contention. He was ultimately, without opposition, allowed to bring the judgment before the Court, but it appears from the pleadings that these facts were strongly founded on, and there was some evidence that he had expressly stated that he meant to acquiesce in the Lord Ordinary's finding.
While, therefore, the case certainly raised the same question as that before us, it arose under very unfavourable circumstances, which must have impressed the Court adversely to the petitioner.
The note of what fell from the Bench, which Lord Moncreiff has written on the papers, is as follows:—
“ Hermand.—Thinks interlocutor quite right. Goes over ground stated in answers.
Balmuto.—Of same opinion. Thinks interlocutor could not be opened.
Balgray, Succoth, President, of the same opinion.
Whole turns on distinction between special legacy and general settlement.”
I cannot resist the opposite current of authority since the date of this judgment.
The Court recalled the interlocutor of the Lord Ordinary and sustained the claim for the truster's heirs in mobilibus.
Counsel for Mrs Aikman and Others— Pearson— M'Watt. Agents— H. & H. Tod, W.S.
Counsel for Trustees (Real Raisers) and for Heirs in mobilibus of the Truster— D.-F. Mackintosh, Q.C.— Blair. Agents— Hunter, Blair, & Cowan, W.S., and H. B. & F. J. Dewar, W.S.