Scottish Court of Session Decisions

Thomas Elder died on 24th October 1891, leaving a trust-disposition and settlement dated 26th March 1886, whereby he conveyed his whole estate, heritable and moveable, to trustees. After providing for payment of debts and expenses, for implement of marriage-contract provisions in favour of his second wife, and for payment of certain legacies and annuities, the testator directed his trustees in the last place to hold the free residue of his estate for behoof of such of his three daughters—Elizabeth, Martha, and Margaret, as might be alive at his death, equally among them, and to pay over to each the free annual income of her share, during her life, as a strictly alimentary provision, the fee of each daughter's share at her death to be paid over to her issue, and survivors and survivor of them, in such shares as she might direct, and failing which then equally among them. In the event of any of his daughters failing without leaving issue, the testator provided that they should have power to test on the fee of the shares liferented by them, and

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failing the exercise of this power, that the fee of the shares liferented by them should at their death accresce to the surviving daughters in liferent and their issue in fee. The settlement made no provision for children nascituri.

The testator was twice married, and was survived by his second wife, and by four children, viz., Elizabeth (Mrs Reid), and Martha (Mrs Lockhart), children of the first marriage; Margaret and Thomas, children of the second marriage. Elizabeth, Martha, and Margaret were the only children of the testator in existence when his trust-disposition and settlement were executed. Thomas was born subsequently on 18th December 1890, ten months before his father's death.

On the occasion of his second marriage the testator had entered into an antenuptial contract, whereby he had provided an annuity of £200 to his intended wife, but this contract contained no provision in favour of children.

The testator left heritable estate to the value of over £10,000, and moveable estate to the value of £14,000, of which a great part consisted of bonds and dispositions in security.

After his death the trustees were advised that the trust-estate fell to be administered in terms of the settlement notwithstanding the subsequent birth of the testator's son. The testator's widow Mrs Elder, as tutor of her pupil son, disputed this, and a multiplepoinding was therefore raised by the trustees to determine the rights of parties in the trust-estate.

The trustees claimed to be ranked and preferred to the whole fund in medio to be held and administered by them in terms of the trust-disposition and settlement.

Mrs Elder, as tutor to her pupil son Thomas, claimed in the first place to be ranked and preferred to the whole heritable property of the deceased, with the revenues accrued since his death.

She averred—“(1) The pupil Thomas Elder is the only son of the deceased Thomas Elder. His father had wished for many years to have a son, and he expressed disappointment that the first child of his second marriage was a girl. He was, on the other hand, very much pleased that the second child was a boy. He was, and continued until his death, to be extremely fond and proud of his son. The deceased by his industry had acquired a considerable fortune, a great part of which he had invested in heritable property which he managed himself. He was commonly addressed by his intimates as ‘the Laird,’ and he liked the title. From the day that his son was born he constantly spoke of him both to the members of his family and to others as his ‘heir,’ and he usually referred to him in conversation with others as ‘the young laird,’ meaning thereby that his son would succeed to his heritable properties after his death. During the period which elapsed between the birth of his son and his own death the deceased repeatedly expressed both to his wife and to others not merely his will and intention that his son should succeed to his heritable properties after his death, but his belief and understanding that his son was entitled to succeed to the said properties, and would in point of fact inherit them, and that notwithstanding the terms of his trust-disposition and settlement. Among the persons to whom the deceased so spoke were…. The deceased regarded the said trust-disposition and settlement as revoked by the birth of his son and as ineffectual to prejudice in any way the right of his son to succeed as his heir, and he stated this to his wife as his reason for not making a new will.”

She pleaded—‘(1) In respect of the birth of the said Thomas Elder, and in the circumstances stated, the trust-dispositions and settlements mentioned in the condescendence must be held to have been and were revoked, and the said Thomas Elder as his father's heir ab intestato is entitled to be ranked and preferred in terms of the first alternative of the claim.”

Mrs Reid and Mrs Lockhart, the testator's daughters by his first marriage, claimed to be ranked and preferred to the liferent of one-third each of the fund in medio, after deduction from the capital of the estate of the legitim due to Thomas Elder, and subject to the administration of the real raisers.

On 10th November 1893 the Lord Ordinary ( Low) allowed the claimant Mrs Elder a proof of her averments in article 2nd of her condescendence, and to the other claimants a conjunct probation.

“ Opinion.—The question of law which is raised in this case is, whether a general settlement made by a father in favour of children in existence at the date of the settlement nominatim can be revoked by the subsequent birth of a child whose birth the father survived only for a short time.

It was argued on the one hand, that the principles embodied in the maxim si testator sine liberis decesserit may apply to such a case just as strongly as to the case of a settlement made in favour of strangers before any children have come into existence. On the other hand, it was contended that implied revocation by the birth of children was confined, as the words of the maxim showed, to the case of a will made by a person who had no children at the time when it was executed.

So far as I know, all the cases in Scotland in which the application of the conditio has been in question have been cases where the settlement was made when there were no children in existence, and therefore it is necessary to consider whether the principle upon which these decisions proceeded is applicable to such a case as the present.

The decisions appear to me to have proceeded upon presumed intention. Where the position of the testator has been entirely changed, and new moral obligations have come into existence by the birth of children, there is a strong presumption that a settlement which amounts to a disinheritance of the children

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no longer expresses the intention of the testator. I see no reason in principle why the presumption should not also apply (unless, of course, the circumstances of the case preclude it) in favour of a child or children born after the date of a settlement making provision for children in existence at its date. Indeed, the fact of such a settlement having been made seems to me to be rather in favour of the presumption, because it shows that the father was alive to and desirous of fulfilling the duty of providing for his children.

In the civil law it appears that if a child was not expressly instituted or expressly disinherited, the testament was held to be ineffectual—Inst. lib. 2, tit. 13.

Again, in England, prior to the Wills Act of 1838 (which seems to have practically put an end to such questions by providing that every will shall be revoked by marriage, and that no will shall be revoked by any presumption of an intention, on the ground of an alteration in circumstances), it was more than once decided that the will of a married man having several children was revoked by the subsequent birth of other children unprovided for. I may specially refer to the case of Johnston v. Johnston, 1 Phil. 447, in which Sir John Nicholl, in a very elaborate judgment, deals with the law of implied revocation of a will by the subsequent birth of children.

I am therefore of opinion that the presumption is applicable to such a case as the present, unless it is excluded by the special circumstances.

Prima facie the circumstances of the present case are favourable for the application of the presumption.

The testator was twice married. By his first marriage he had two daughters, the youngest of whom was born in 1860. In 1879 the testator married a second time, and there was no issue of that marriage until 1885, when a daughter was born. It was not until the 18th December 1890 that a son, in whose favour the presumption is now pleaded, was born. The testator died on 24th October 1891.

The settlement was made in March 1886, a few months after the birth of the first child of the second marriage. After bequeathing a few legacies of inconsiderable amount, the testator directed his trustees to hold the whole residue of his estate for his three daughters, equally among them in liferent, and for their children in fee.

In such circumstances it seems to me that the presumption is that the testator did not intend to leave his son wholly unprovided for, except to the extent of the few hundreds of pounds which represents his share of legitim, and I am inclined to think that the question might have been disposed of upon the admitted facts. The son's guardian, however, did not ask me to dispose finally of the question now, but to allow her a proof of her averments. The motion for proof was only opposed because it was argued that whatever were the facts the conditio did not apply to the case. As I am of opinion that that argument is not well founded, and as it is desirable that all the circumstances should be before the Court, I shall allow a proof of the averments in article 2 of the condescendence for Mrs Elder as guardian for her pupil son.”

The claimants, the trustees, and Mrs Reid and Mrs Lockhart, reclaimed, and argued—The proof allowed was incompetent. The conditio si sine liberis only applied when there were no children in existence at the date when the settlement was executed. It could not be pleaded by one child against others— Colquhoun v. Campbell, June 5, 1829, 7 S. 709; Findlay's Trustees v. Findlays, December 7, 1886, 14 R. 167. At one time it had been held that the condition operated to extend the benefits of a father's will to a child born after the date of the will so as to give such a child the right to share the benefits of the will along with the children who had been in existence at the date of its execution—M'Laren on Wills, i. 259. But that theory had since disappeared and was now held unknown to the law— Spalding v. Spalding's Trustees, December 18, 1874, 2 R. 237. The doctrine of implied revocation might have been urged in Hastie v. Hastie, 1671, M. 416, and in Spalding, but was not. The authority of the English cases was inapplicable, as the English law on this point was not founded on the same principles as the Scots—Jarman on Wills, iii. The case of Johnston v. Johnston, on which the Lord Ordinary relied, was not cited in Jarman, and it was at variance with the later case of Doe v. Barford, 4 M. & G. 10. The English law, therefore, even if applicable, was not against the contention of these claimants. Nor was the Roman law directly applicable, for there the estate belonged to the family and not to the father. Assuming that the conditio could be pleaded by one child against another, no relevant case was stated in favour of implied revocation. The averments made by Mrs Elder were merely to the effect that the settlement did not express the last will of the testator, which was simply an attempt to make a will for the testator by parole— Brown and Others, July 20, 1893, 30 S.L.R. 865.

Argued for the claimant Mrs Elder—As a mere matter of procedure the Lord Ordinary's interlocutor should not be interfered with. Further, assuming that this case was not strictly within the words of the maxim si sine liberis, it certainly fell within the principle. The principle of the Roman law, that the case of each child must be considered by the parent before it could be excluded from a share of his estate, had been adopted both in Scotland and England. The maxim naturally included such a caseas thepresent, and the question whether it applied in such a case was treated as open by Lord M'Laren in his Book on Wills—M'Laren on Wills, i. 259. In every case it was a question of circumstances whether a will was revoked by the subsequent birth of children— Hughes v. Edwards, January 25,

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1892, 19 R. (H of L), 33. The presumption was in favour of revocation— A's Executors v. B & Others, January 22, 1874, 11 S.L.R. 259; Dobie's Trustees v. Pritchard, October 19, 1887, 15 R. 2; Munro's Executors v. Munro, November 18, 1890, 18 R. 122. In Colquhoun's case Lord Glenlee had laid it down that unless it was as plain as a pikestaff that the father intended the will to stand, it would be held revoked. The condition was subject to this qualification, that the subsequent birth of a child which died before the parent did not affect the validity of the will in the circumstances. The question here was not one of the construction of a will, but whether there was a will at all, and in such a case parole proof was competent.

At advising—