 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Chancellor's Trustees v. Chancellor [1896] ScotLR 33_313 (24 January 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0313.html Cite as: [1896] ScotLR 33_313, [1896] SLR 33_313 |
||
[New search] [Printable PDF version] [Help]
Page: 313↓
By his marriage-contract an heir of entail conveyed to trustees certain funds, including the provisions he was entitled to make out of the entailed estate in favour of his younger children. These funds were to be held by the trustees “in trust for behoof of the children of the said intended marriage not succeeding to the said entailed estate, and that in such shares or proportions, and subject to such conditions,” as the granter “shall appoint by any writing under his hand,” and failing such appointment, for behoof of the younger children alive at the granter's death in equal shares, the issue of predeceasing children coming in place of their parents, and being entitled to the share which would have fallen to them if they had been alive.
On the marriage of A, a younger son, the granter appointed to him and his lawful children in the event of his death, or his or their assignees, £1500 as his share of the marriage—contract provision. The deed of appointment was declared irrevocable and to be held as delivered from the date of execution, and under it A was taken bound to assign the sum to his marriage-contract trustees. A predeceased his father without issue, and survived by his wife, to whom he bequeathed his whole estate. The granter was survived by a son, who succeeded to the entailed estate, and two daughters.
In a competition between the latter and A's widow, held that the provision of £1500 vested in A at the date of the deed of appointment, and was carried by his will.
Subject_Entail — Younger Children — Daughter of Predeceasing Eldest Son not Succeeding to Entailed Estate.
In his marriage-contract the heir of an entail in favour of “heirs-male” made a provision for behoof of the younger children of the marriage, viz., those not succeeding to the entailed estate, who should be alive at his death, the issue of predeceasing children taking their parent's share.
Opinion by Lord Young, that the only daughter of the eldest son, who predeceased his father, and therefore did not succeed to the entailed estate, was entitled to a share of the provision.
By the antenuptial contract of marriage between John George Chancellor of Shield-hill and Miss Isabella Adolphus Ross, dated 22nd June 1847, John George Chancellor, who was the heir of entail in possession of the entailed estate of Shieldhill, inter alia, bound the heirs and substitutes of tailzie who should succeed to him to pay to the trustees under the contract of marriage the sum of £2000, or such other sum as should be equal to three years' rent of the said estate, and that at the first term of Whitsunday or Martinmas after his death, to be held by the trustees “in trust for behoof of the children of the said intended marriage not succeeding to the said entailed estate, and that in such shares or proportions, and subject to such conditions if more than one such child, as the said John George Chancellor shall appoint by any writing under his hand, and failing such appointment the said sum shall be held by the trustees for behoof of the younger children who shall be alive at the death of the said John George Chancellor, in equal shares or proportions, the issue of such other child or children as may have predeceased always coming in place of their parents, and being entitled to the share that would have fallen to their parent had he or she been alive.” This provision bore expressly to be granted in exercise of the power in a bond of tailzie of the Shieldhill estate, dated 11th April 1727, reserving to the heirs of entail the liberty “to provide their younger children to three years' free rent of the said lands.”
In 1885 John George Chancellor, acting under the authority of the Court of Session, granted in favour of the marriage-contract trustees a bond and disposition in security for £2804, 8s. 9d., being the estimated amount of three years' free rental of the said entailed estate.
On 15th March 1894 John George Chancellor died, predeceased by his wife.
The children of the marriage were (1) Major Alexander Chancellor, who died on 21st April 1893 leaving a daughter, Isabella
Page: 314↓
Blanche Dora Chancellor, in pupillarity; (2) Hume Frederick Chancellor, who survived his father and succeeded to the entailed estate; (3) the Reverend Robert Blair Maconochie Chancellor, who died on 3rd January 1890 without issue; and (4) Elizabeth Blanche Chancellor; and (5) Mrs Mary Forbes Chancellor or Chadwick, who both survived their father. On the occasion of the marriage of his son, the Reverend Robert Blair Maconochie Chancellor, with Miss Henrietta Maria OrdePowlette, John George Chancellor, by a separate deed of appointment dated 24th July 1888, on the narrative that the marriage was about to take place, and that in the negotiations in connection therewith it had been covenanted that he should grant these presents, appointed to his said son or his lawful issue in the event of his death, or his or their assignees, such a sum out of his marriage-contract trust funds as should make his said son's share of the total trust funds divisible among the younger children of the marriage to amount to £1500. By the deed of appointment it was declared that the deed should be held as delivered immediately after execution, that it should not be subject to revocation or alteration by John George Chancellor, and that Robert Blair Maconochie Chancellor should be bound to assign his whole rights and interests under it to his marriage-contract trustees. Thereafter in his marriage settlement, executed on 29th August 1888, Robert Blair Maconochie Chancellor assigned the said sum of £1500 to his marriage-contract trustees. The marriage was dissolved by the death without issue of Robert Blair Maconochie Chancellor on 3rd January 1890. He left a will dated 14th May 1889, by which he bequeathed his whole estate, real and personal, to his wife, and appointed her his executrix. She subsequently married the Reverend Henry Milner Sharpies, and in their marriage settlement, dated 29th September 1893, conveyed, inter alia, the said sum of £1500 to the marriage-contract trustees.
After the death of John George Chancellor on loth March 1894, his marriage-contract trustees raised an action of multiplepoinding for the division of the trust-estate, including the said sum of £2804, 8s. 9d. Claims were lodged by Mr and Mrs Sharpies' marriage-contract trustees, and by Miss Elizabeth Blanche Chancellor, and by Major and Mrs Chadwick's marriage-contract trustees, as representing Mrs Mary Forbes Chancellor or Chadwick. No claim was lodged for Miss Isabella Blanche Dora Chancellor, the daughter of Major Alexander Chancellor, the eldest son of John George Chancellor, who predeceased his father.
Mr and Mrs Sharpies' marriage-contract trustees claimed the £1500 which John George Chancellor on 24th July 1888 had appointed to his son Robert or his assignees. This claim was opposed on behalf of the two daughters of John George Chancellor, on the ground that Robert died before his father, and that in terms of the father's marriage-contract no part of the marriage-contract provision of three years' free rent of the estate of Shieldhill vested in any child who predeceased the father.
On 5th August 1895 the Lord Ordinary (
Kyllachy ), inter alia, found “that in the just construction of the marriage-contract of the late John George Chancellor, the provisions thereby conceived in favour of is younger children did not vest till his death,” and accordingly repelled the claim of Mr and Mrs Sharpies' marriage-contract trustees.Note.—“The Lord Ordinary has not been able to find grounds for holding that the shares of the younger children vested before the death of their father. The presumption, no doubt, is for vesting at the dissolution of the marriage, but the peculiarity of this case is that there is no gift except to the younger children of the marriage (that is to say—to the children not succeeding to the entailed estate); and until the death of the father (the heir of entail and granter of the provisions) the class of younger children cannot be ascertained. That, in the Lord Ordinary's opinion, excludes vesting at the earlier period, especially when taken along with the destination-over to the issue of predeceasers, which, although not conclusive, is always in such cases an element.
It was argued that there might be vesting at birth in the whole children other than the first-born son, subject to defeasance in the case of any child coming to succeed to the entailed estate. But vesting subject to defeasance can hardly operate when there is no original gift, It was also argued that there is in the marriage-contract no reference to survivorship except in the case of failure of appointment. But it is not, in the Lord Ordinary's opinion, possible to construe the deed as giving a power to appoint to a class of objects larger than the class of objects taken in default of appointment. On the whole, the Lord Ordinary does not see his way to sustain the claim for the representatives of the predeceasing younger son, who died without issue.”
The claimants, Mr and Mrs Sharpies' marriage-contract trustees, reclaimed and argued—Under the clause in his marriage-contract John George Chancellor had full power to appoint a share of the three years' free rent to any of his younger children, so as to make that share vest on appointment. This power of appointment he had exercised on the marriage of his son Robert, and the £1500 vested in Robert at that date. The case was ruled by Oswald v. Oswald, December 20, 1821, 1 S. 246. That case decided a general point, and was cited as an authority in all the text books—Menzies' Conveyancing, 3rd ed. p. 742; Bells' Conveyancing, 3rd ed., p. 888; M'Laren's Wills and Succession, 3rd ed., p. 1082. Further, the Aberdeen Act (5 Geo. IV. c. 87) applied; under sec. 5 of that Act a provision of this nature, when settled in the marriage-contract of a child who predeceased the granter, remained valid and effectual as if such child had survived the granter. It
Page: 315↓
might be argued that the provision did not vest in Robert at the date of the deed of appointment, because he might subsequently have succeeded to Shieldhill as heir of entail, and thus passed out of the category of “younger children.” But the Aberdeen Act, sec. 4, expressly provided that a provision of this kind should be extinguished on any child succeeding to the entailed estate. In such a case the vesting would have taken place subject to defeasance on Robert succeeding as heir of entail— Wright's Trustees v. Wright, February 20, 1894, 21 R. 568. Argued for claimants Miss Elizabeth Blanche Chancellor and Mrs Chadwick's Marriage-Contract Trustees—At his marriage John George Chancellor had divested himself of the three years' free rent of Shieldhill in favour of his trustees, and this fund could not come into existence till after his death. He had divested himself entirely of the fund, reserving only a power of appointment. Under this power he could only appoint to a child (1) not succeeding to the entailed estate, and (2) surviving him. In order to find out the persons to whom the class “youngerchildren” applied, the date of the father's death must be waited for, because it was impossible to predicate before his death which of his children would succeed to Shieldhill as heir of entail. No vesting therefore took place before the father's death— Burnett v. Burnett, March 4, 1854, 16 D. 780; Cotton v. Mackenzie, March 1, 1872, 10 Macph. (H.L.) 12, opinion of Lord Chelmsford, p. 23. The case of Oswald was not reported satisfactorily, and must not be looked upon as an authority. From anything that appeared in the report of that case, or in the session papers, it may have proceeded on special grounds. The destination in that case was also different, being to their “several” younger children. The Aberdeen Act did not apply to the present case— Callander v. Callander, May 21, 1869, 7 Macph. 777—and sec. 5 of that Act altered the common law. This case was governed by the common law, and the general rule of law on this point was that a provision payable to a child at the granter's death lapsed if the child predeceased the granter and left no issue—Menzies' Conveyancing, p. 459. Further, the appointment was in effect an appointment to Robert's children as well as to Robert. It was beyond the power of appointment conferred by the marriage-contract to appoint to grandchildren. The appointment being therefore bad in part, the whole deed was vitiated, and the appointment was null— Blaikie's Trustees v. Oxley, February 25, 1862, 24 D. 589.
At advising—
We are only concerned with the state of his family to this extent, that he left behind him a son—his second son, as it happened—who succeeded to the entailed estate of Shieldhill; therefore he makes no claim upon the funds. His eldest son predeceased him, leaving a daughter, but for whom no claim is made. The third son, Robert, married in his father's lifetime, and predeceased his father without leaving any issue. He also left two daughters, one married, and, I think, the other not. On the marriage of his third son Robert, he was, in effect—not quite formally but in effect—a party to the marriage—contract, and undertook an obligation that Robert should have £1500 as his share of the sums in the hands, or which should come to be in the hands, of his marriage-contract trustees.
The question which was argued before us really regarded the claim of the deceased Robert's executors under his will, or the beneficiaries under his will, to the £1500 provided to him in his marriage-contract to be paid by his father's marriage trustees. It is claimed by them upon the ground that that was a good and binding obligation in favour of Robert, and had not lapsed in consequence of Robert predeceasing his father; and that being so, that upon his death without issue and leaving a will, it passed, according to his will, to those who are claiming under it. The answer made to this is that it was incompetent for the father to make a provision in favour of Robert otherwise than conditionally upon his surviving his father, that being the true construction of the language of his father's marriage-contract, and also being the true meaning of the provision in the deed of entail that the heir in possession should be at liberty to burden the heirs of entail with provisions in favour of his younger children to the extent of three years' rent. The entail does contain that provision. It provides that the heirs in possession shall have full power and liberty to provide their younger children with three years' free rent of the lands, so far as the same are free and unaffected at the time with liferents—and so on. The contention is—and that is the question which we have to decide—that the true meaning of this is that it is not in the power of the heir to make the provision a burden upon the heirs of entail succeeding to the entailed estate excepting in favour of younger children who survive. Now, the entail here says nothing upon that subject. It only says, in the words which I have read, that it shall be in the power of the heir in possession to burden the heirs succeeding in favour of his younger children to the extent of three years' free rent. It
Page: 316↓
That is quite distinct language of the Aberdeen Act, that a provision in terms of the liberty given by it to the heir in possession should not be effectual except in favour of younger children who survive the granter, except in the case of a provision settled in a marriage-contract, but that it shall in that case be effectual in favour of the child although he does not survive the granter. I have pointed out that the entail ere which gives liberty to the heir in possession, contains no provision upon either subject, and if the question had arisen upon it only, we should have had to consider whether there was anything contained in the deed giving this provision which limited it to younger children not succeeding to the estate who survived the granter, and how that might have been decided I have not considered in this case, because there is no claim made here for any child who predeceased the granter, except the child for whom a provision was made in his marriage-contract, or fixed in his marriage-contract, viz., Robert.
Therefore we have only to consider whether in the case of an entail containing a liberty to provide three years' free rent, we shall read the power given by it as more limited than the power which the Aberdeen Act gives to the granter. Now, I should not be disposed to do that in any case or in any view, but I think the Aberdeen Act is itself expressly applicable, for it gives a larger power, because the preamble of it signifies that it means to enlarge the powers which are given by existing entails which contain them. If existing entails contain any power, then the Aberdeen Act will not limit it; for the purpose of that Act is to extend the liberty, not to restrain it. I do not read the preamble, but I call attention to it to show that that is the meaning and intent of the statute. Therefore if I had any difficulty in holding that the power which is given by this Shieldhill entail to the heir in possession to give three years' free rent to his younger children may be construed as entitling him to make a provision in favour of a child who is about to be married—I say, if I read the entail as not extending the giving of liberties so far, I should hold that the liberty was so far extended by the Aberdeen Act, for the purpose and intention of that Act, as I have said already, is to extend to the extent which is specified in the Act, the liberty which is contained in any deed of entail. Therefore I hold it to be clear that Mr Chancellor, who made this provision, was at liberty, so far as the obligation upon succeeding heirs of entail was concerned, to make a binding obligation upon them in the marriage-contract of his son Robert, although Robert predeceased him, it being provided that it should have effect although the married child in whose contract the provision was made or guaranteed by the father predeceased him. Now that leads clearly to the decision of the only point which was argued before us in favour of those claiming through Robert, to the effect that the provision made in his favour, and guaranteed by the father in his marriage-contract, is good, although Robert predeceased him, and that it must therefore go according to Robert's will.
I have stated that there was another child who predeceased the father, viz., his eldest son. He is now represented by a daughter, for whom, however, no claim is lodged. If a claim had been lodged on her behalf I must say I should have been very favourable to it. The only answer to it that occurs to me is that if the eldest son had survived he would have succeeded to the entailed estate, and that the provision in the marriage-contract is only in favour of the children who did not succeed to the entailed estate, or the children
Page: 317↓
Nor should it be forgotten that Mr Chancellor was dealing with a fund of his own providing, of which he had the absolute disposal except in so far as limited by the terms of his marriage-contract. Seeing, therefore, that he intended Robert's share to vest at once, that nothing in the marriage-contract prevented such vesting, and that the appointment in favour of Robert was valid as in favour of an object of the power, I am of opinion that vesting took place in Robert, and that the claim of his executrix to the £1500 should be sustained.
The case of Oswald cited to us, but not brought under the consideration of the Lord Ordinary, appears to be quite in point.
Lord Justice-Clerk—I concur in the opinions which your Lordships have expressed.
The Court recalled the Lord Ordinary's interlocutor, ranked and preferred the claimants Mrs Henrietta Maria Orde-Pow-lett or Chancellor or Sharpies' marriage-contract trustees in terms of their condescendence and claim to the extent of £1500 out of the fund in medio, and remitted the cause back to the Lord Ordinary to proceed.
Counsel for Pursuers and Real Raisers, Mr and Mrs Chancellor's Marriage-Contract
Page: 318↓
Counsel for Claimants Mr and Mrs Sharpies' Marriage-Contract Trustees— Mac-farlane. Agents— John C. Brodie & Sons, W.S.
Counsel for Claimant, Miss Elizabeth Blanche Chancellor— Pitman. Counsel for Claimants Major and Mrs Chadwick's Marriage-Contract Trustees— Dundas. Agents— J. & F. Anderson, W.S.