J. and C. B. Lawsons - Sir Charles Wetherel - Wilson v. Stewarts and Others - Kea - John Campbell
[1827] UKHL 2_WS_625
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(1827) 2 W&S 625
CASES DECIDED IN THE HOUSE OF LORDS ON APPEAL FROM THE COURTS OF SCOTLAND, 1827.
1 st Division.
No. 55.
v.
Subject_Legacy. — Substitute or Conditional Institute. —
A husband and wife having disponed, by a trust-settlement, their estates and effects to themselves jointly, for their joint and several liferents allenarly, and to trustees in fee, declaring the settlement irrevocable at the death of either; and bequeathed certain legacies, declaring that “in the event of the death of any of the said legatees prior to the survivor of us, his, her, or their legacy or legacies shall thereby fall and belong to their executors, or next of kin;” and a legatee having survived one of the testators, but predeceased the other, Held (affirming the judgment of the Court of Session) that the legacy belonged to the legatee's nearest of kin, as conditional institutes.
The late Colonel and Mrs Baillie, in 1811, executed a joint settlement, by which, on the inductive cause that it was made “for the welfare of our relations and friends after mentioned,” they assigned and conveyed their whole property, both heritable
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Thereafter the following codicil was added:—
“We, Colonel Alexander Baillie, and Mrs Euphemia Hamilton, or Baillie, within designed, considering that, by the foregoing deed, we legated and bequeathed to Major Alexander Walker, Colonel Robert Walker, and Miss Barbara Walker, the sum of L.2000 sterling each, and declared that, in the event of their surviving either of us, the said legacies should fall and belong to their executors or next of kin; and seeing that it is our wish that Mrs Elizabeth Walker or Raitt, of Carphin, eldest daughter of the said Alexander Walker; and John Raitt, Esq. her husband, should be secured in the half of the said legacy, so bequeathed to the said Alexander Walker; that the said Robert Walker is married, and has no family, and that the said Barbara Walker is unmarried; therefore, we hereby revoke the foresaid legacy of L.2000 to the said Alexander Walker, to the extent of the half thereof, or L.1000 sterling; which sum of L.1000 sterling, we hereby legate and bequeath to the said Mrs Elizabeth Walker or Raitt, and John Raitt, her husband, in conjunct fee, and to their heirs, executors, and successors, declaring, that it shall be payable and bear interest, and be subject to the conditions, all as specified in the foregoing deed. With regard to the other legacies thereby bequeathed, and, in respect the said Robert Walker is married, but has no family, we declare that, in the event of his dying without children, the destination of the foresaid legacy of L.2000 to him is hereby so far altered, that he shall not have the power of disposal of it; but, in the event of his being survived by Mrs Sarah Holland, or Walker his wife, that she shall have the liferent of the same; and, after her death, it shall fall and accrue to, and become part of, our residuary estate, under the foregoing deed, unless we, or the survivor of us, shall specially destine the same. And, in respect the said Barbara Walker is unmarried, we hereby declare, that she shall only have the power of disposal of the half of the foresaid legacy of L.2000, bequeathed to her by the foregoing deed,
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and that the other half thereof shall fall and accrue to, and become part of, our residuary estate, under the same, unless we, or the survivor of us, shall specially destine the same; and, in the event of her not executing any settlement of the other half, we hereby declare, that it shall also revert to, and form part of, our residuary estate, and be subject to the disposal of the survivor of us, in terms of the foregoing settlement.”
Colonel Baillie died in 1814—the settlement was put upon record, and the trustees entered on the management. Mrs Lawson died in 1820, and Mrs Baillie in 1823. Mrs Lawson had, by her marriage-contract, assigned to her husband “all and sundry goods, gear, debts, sums of money, as well heritable as moveable, that are presently belonging, or resting and owing to her, and that shall pertain and belong to her during the standing of the said marriage, with all action and execution competent to her hereanent.” Her husband was decerned her executor, conform to decree-dative by the Commissaries of Edinburgh. He had no sons by Mrs Lawson, but appointed his two sons, by a former marriage, his sole executors, and thereafter died.
The trustees having realized the estate, a competition arose between Mr Lawson's two sons, as representing through him the legatee, Mrs Lawson, and Mrs Stewart and others, the next of kin of Mrs Lawson (the children of her sister), for the legacy left by Colonel and Mrs Baillie; and to try the question, the trustees raised a multiplepoinding. The Lord Ordinary—
“In the competition between the claimant, Mrs Stewart of Shambelly, and the other executors and next of kin of Mrs Janet Hamilton, wife of Mr Peter Lawson, seedsman in Edinburgh, and the representatives of the late Mr Lawson her husband, prefers the said Mrs Stewart and the other next of kin of Mrs Lawson to the legacy of L.2000, in respect that it is expressly provided by the settlement, that in the event of the death of any of the said legatees prior to the survivor of us, the said Alexander and Euphemia Baillie, his, her, or their legacy, or legacies, shall thereby fall and belong to their executors or next of kin; and, therefore, the executors, or next of kin of Mrs Lawson, were called as conditional institutes, she having survived Colonel Baillie, but having died before Mrs Baillie, when the legacy became payable.”
On advising petition and answers, the Court being equally divided, the Lord Ordinary was called in, and his Lordship remaining of his former opinion, the Court adhered; and thereafter,
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†
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* See 4 Shaw and Dunlop, No. 261.
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† These are the opinions which were laid before the House of Lords.
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But when you look to this deed, and examine it narrowly, and find out the real intention of the parties, when I come to this, to the intention of the parties, I confess that the argument for the respondents removed all difficulty in my mind, and satisfied me that you are to interpret the “executors, or next of kin,” of the legatees to be the same thing; and this difficulty being removed, I see no difficulty at all in the other parts of the case. You are to look to the trustees as holding for all parties interested. But they only could hold for those parties, who, under this will, had a vested interest. But I am quite clear that the legacies could not vest in the legatees. I am of opinion that the interlocutor is right.
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I think it cannot be denied there was a jus crediti, a right complete and absolute, which never could be shaken. But unfortunately it is said, “which several sums we do accordingly legate and bequeath to the persons after-mentioned, as follows.” Then a number of persons are named. Now, I say, these were proper enough words with regard to the first part of the subjects, during the joint lives of the parties. But, I say, they do not apply to the second event, after the death of one of them. I conceive that the word legacy was improper and inapplicable to the latter case, after the subjects had been sold. It was a payment out of funds put into the hands of certain persons for the very purpose. I am satisfied that the association which formed itself in the opinion of the framer of the deed, was just this. It is specially declared, that in the event, &c. (His Lordship here quoted a passage from the deed.) I am satisfied, that if he had not used these words, ‘executor or next of kin,’
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The Lawsons appealed.
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Respondents.—Assuming that executors or next of kin are here used synonymously, it is impossible to hesitate about the meaning of the terms used in the deed. In the event of predeceasing the survivor, the legacy was to belong to the next of kin. Mrs Lawson did predecease the survivor. The condition, therefore, is purified under which the next of kin are called, and they take in their own right. This is not the case of a legacy given absolutely, but payable at some future time. It is not given merely under a suspended period of payment, but on a condition creating a conditional institution in others. This the testators had the power to do, and it is clear they also had the intention to do so. The construction of the whole deed shows that an absolute interest, implying a power of disposal, was not vested until the death of both testators. But there is no ground of distinction between executors and next of kin. ‘Or’ is not used here disjunctively, but to connect two explanatory synonymous words. Under them, the executor nominate is not let in. Where a legacy is left to a party and his executors, the executors will take in their own right on failure of the legatee; but that rule does not apply to executors nominate, but only to executors by blood—nor can assignees claim; for no person can convey a legacy to assignees or executors nominate, unless it be actually vested in his own person. The settlement being in the shape of a trust, is in favour of the respondent's argument. The trust suspends all vesting that could disappoint contingent rights. It remains qualified and subject to all the conditions under which it was created and constituted. The circumstance of its being irrevocable cannot have any effect in removing the condition in the trust. The interest of the conditional institutes remains exactly as it would have been without the intervention of the trust. As to the codicil, the testators were desirous of securing a particular individual in a certain sum, which, as the deed stood, would not have been so secured, either under the appellants' or the respondents' reading; and in other respects, it refers to the party surviving both testators, when his power would, if not controlled, have been absolute. The appellants have no title. The legacy was not effectually conveyed by Mrs Lawson to her husband, nor by Mr Lawson to them.
The House of Lords ordered and adjudged that the several interlocutors complained of be affirmed, with L.100 costs.
Master of the Rolls.—The first question is, what would be the gift, if nothing had followed affecting that gift? The words are—“To Mrs Janet Hamilton, otherwise Lawson wife of Peter Lawson, seedsman in Blair Street, Edinburgh, and niece of me, the said Euphemia Baillie, excluding the jus mariti, or right of administration of her said husband, the sum of L.2000 Sterling.” Mrs Lawson survived Colonel Baillie.—Then, on principle and authority, she would have taken a vested interest in the legacy. Now, see how the gift is affected by what follows—(and here I think that the case of Nicolson and Ramsay is so far from being favourable to the appellant, that it assists the respondents.) The testators say— “It is hereby specially declared, that in the event of the death of any of the said legatees prior to the survivor of us, the said Alexander and Euphemia Baillie, his, her, or their legacies, shall thereby fall and belong to their executors or nearest of kin.” Now, the testators never meant to repeat what they had done before, viz. that if the legatees survived one of the testators, they had a vested interest, and could, of course, distribute it as they thought proper; but this second clause must have been intended to express a modification or qualification of the first; therefore we must use it as introducing a modification or qualification. Suppose these words had immediately followed the legating clause, what, by the Scotch law, would have been the effect of this conjoined clause? I have looked into the authorities of the Scotch law on the point, and I am clear, that to call executors or nearest of kin, is to make the executors and nearest of kin conditional institutes. Then what is to be said when these very words are to be introduced to qualify a previous vested interest? Can we arrive at another and different conclusion, than that the conditional institutes take the legacy? It remains, therefore, only necessary to consider the codicil. I was at first misled by the recital of the early part of the codicil, holding that it referred to the case of a legatee predeceasing one of the testators. If that had been the true construction of the codicil, it would, by implication, have amounted to a declaration that, if the legatee survived either, he was to have an absolute interest. But if you continue to read, you will see that the operation of the codicil is not confined to that case. On this head also, therefore, the argument of the appellant falls to the ground. I am clearly of opinion—indeed not a doubt remains on my mind,—that the judgment of the Court of Session is consistent with the soundest principles of the Scotch law, and of English principles, as far as they are applicable to the point at issue. *
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* The Master of the Rolls communicated this opinion to the parties in a private room.
Appellant' Authorities.—Nicolson, 16th Dec, 1806, (No. 2. App. Legacy.) 3 Stair's Inst. 8. 21. 3 Ersk. Inst. 2. 9. Voet, 36. 2. 2. Grahame, 17th Feb. 1807, (No. 3. App. Legacy.) Blackstone's Com. vol. 2. p. 379. Duncan, 27th June 1809, (Fac. Col.) Roxburghe Cause.
Respondent's Authorities.—Grahame, 17th Feb. 1807, (No. 3. App. Legacy.) Duncan, 27th June 1809, (F. C.) Glendinning, 30th Nov. 1825, (4 Shaw and Dunlop, No. 191.) Inglis, 16th July 1760, (8084.)
Solicitors: Richardson and Connell,— Spottiswoode and Robertson,—Solicitors.
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