Scottish Court of Session Decisions

This was an action at the instance of William Findlay against James Mackenzie of Glentore, for reduction of a will in favour of the defender, executed by the deceased John Todd of Glenduffhill on 8th October 1872, on the ground that it had been obtained by the defender by fraud and circumvention when the said John Todd was weak and facile in mind. The pursuer was one of the next of kin of Mr Todd, and the defender was his son-in-law.

Preliminary defences were lodged to the effect that if the deed of 1872 was reduced the succession of Mr Todd would be regulated by a prior disposition and deed of settlement of date 27th April 1866, found in Mr Todd's repositories after his death, and that thus the pursuer had no title to sue.

The following is the important part of the deed of 1866:—“I, John Todd, Esquire, of Glenduffhill, near Shettleston, being desirous to settle my

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affairs for the event of death; and considering that I have already fully provided for my daughter Mrs Janet Todd or Mackenzie, wife of James Mackenzie, Esq., of Glentore, in an antenuptial contract of marriage, entered into and executed by and between the said James Mackenzie and my said daughter, with my advice and consent; and that it is my wish to provide farther for my wife Mrs Helen Coats or Todd, in the event of her surviving me, over and above the provisions already conceived in her favour in an antenuptial contract of marriage between me and her, and in the foresaid marriage contract of my said daughter: Therefore I do hereby dispone, assign, and convey to and in favour of my said wife Mrs Helen Coats or Todd, and her heirs and assignees whomsoever, heritably and irredeemably, my whole means and estate, heritable and moveable, real and personal, wherever situated or addebted, which shall belong and be addebted and owing to me at the time of my death, with the whole vouchers and instructions of the said moveable and personal estate, and the writs and evidents of my said heritable estate.” The testator further appointed his wife his sole executrix, and dispensed with delivery of the deed. The previous provisions for Mrs Todd alluded to in this deed had been only in liferent.

The Lord Ordinary ( Craighill) pronounced the following interlocutor:—

“ Edinburgh, 5 th June 1875.—The Lord Ordinary having heard parties' procurators on the preliminary defences, and more particularly on the first and second pleas in law for the defender, and considered the debate and whole process, finds that, according to the sound construction of the general disposition and settlement executed by the now deceased John Todd of Glenduffhill, of date 27th April 1866, referred to and founded on in the defences, the disposition of the testator's whole means and estate, heritable and moveable, real and personal, thereby granted to his ‘wife Mrs Helen Coats or Todd, and her heirs and assignees whomsoever,’ was evacuated by her predecease: Therefore repels the said defences, and appoints the cause to be enrolled with a view to further procedure, and decerns; and, in respect the defender now gives notice of his intention to bring this judgment under review, finds him liable to the pursuer in the expense of this preliminary discussion: Allows an account thereof to be given in, and remits that account to the Auditor to tax and report.

Note.—This is an action to reduce the last will and testament of the late John Todd of Glenduffhill. The pursuer is one of the next of kin or representatives in mobilibus of Mr Todd. The defender is the executor and universal legatory under that will, and has lodged preliminary defences, the import of which is, that the pursuer's title to sue is excluded by the settlement mentioned in the foregoing interlocutor. The pleas in which this defence is presented have been the subjects of an anxious debate, and the conclusion to which the Lord Ordinary has been brought is, that these pleas must be repelled. The pleas referred to are rested on a general disposition and settlement executed by the late Mr Todd of Glenduffhill, of date 27th April 1866, whereby he disponed and assigned to his ‘wife Mrs Helen Coats or Todd, and her heirs and assignees whomsoever,’ heritably and redeemably his ‘whole means and estate, heritable and movable, real and personal.’ Mrs Todd died in 1869. Mr Todd survived till 1873, and as a consequence, the disposition being testamentary, Mrs Todd took nothing under it. This is a point as to which both parties are at one, but as the disposition, according to the words of the dispositive clause, is not to her only, but to her and her ‘heirs and assignees whomsoever,’ the defender contends that her heirs were conditional institutes, and but for the ultimate settlement, executed in 1872, which is now challenged, would have been entitled to the property left by her husband. The result, in this view of the matter, is, that the setting aside of the will of 1872 would, in place of opening up the succession to the heirs in mobilibus of Mr Todd, of whom the pursuer is one, throw it open to the next of kin of Mrs Todd; and there being in such a case as the present no title where there is no interest challenged by the pursuer to the will of 1872, they would thus be excluded. The pursuer, as was to be expected, resists the contention maintained on the subject by the defender. He says that, correctly construed, the deed of 1866 is a disposition to Mrs Todd only, and not a disposition failing her to her heirs and assignees as conditional institutes; and if this is the true reading, the decease of Mrs Todd necessarily rendered that settlement as inoperative as if it had been revoked. The Lord Ordinary, as already intimated, has adopted and has given effect to the view presented by the pursuer, for the reasons which will now be briefly explained.

Two things, however, may be premised. The first is, that both parties are agreed that the passage now to be quoted from Erskine's Institutes (B. iii. T. 9. S. 9.) is good law. He there says that ‘a legacy, where it is devised to a legatee and his executors, is not evacuated by the predecease of the legatee, but passes after the testator's decease to the legatee's executors, not by any right which these executors derive from the legatee to whom that legacy never belonged, he having died before it could have effect by the testator's death, but in their own right as conditional institutes in the legacy.’ There is, the Lord Ordinary thinks, no room for distinction between a legacy which, as generally happens, is only a sum charged upon or payable out of the executry, and one which is a bequest or disposition of the whole moveable succession, and therefore on the present occasion the question is not whether Mr Todd could by disponing his estate to his wife and her heirs and assignees constitute these heirs conditional institutes, but whether this was done by the deed in which such words are used in the dispositive clause. The second of the things to be premised is, that as the deed in question is a mortis causa deed, the intention of the testator, as that is evidenced, not by one part of the deed, but by the deed as a whole, is the rule by which the present controversy must be determined. This, the Lord Ordinary understood, was not disputed at the debate; and, at anyrate, the point is one which, as he thinks, is firmly fixed. Taking, then, the deed as a whole, or, in other words, reading the dispositive clause in the light thrown upon it by the context, what is the result established?

The dispositive clause mentions heirs and assignees, but this is not conclusive, otherwise the rule last-mentioned would be displaced. Indeed, assignees, as was admitted by the counsel for the defender, could and would take nothing, Mrs Todd having predeceased the testator. They, whether

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deriving their right through an inter vivos or through a mortis causa deed, could claim nothing which was not vested in their author. This of itself shows that there may in the dispositive clause be a grant in form of words to representatives of a legatee, who, nevertheless, will be entitled to nothing unless the legatee shall acquire the succession. Heirs or executors undoubtedly occupy a more favoured position. They may take though the nominatim disponee or legatee died before the testator; but whether they shall or shall not take depends on the purpose for which they were introduced into the destination. Are they conditional institutes, or, in other words, independent legatees called to the succession in case of the predecease of the nominatim legatee? Or are they mentioned merely by way of limitation? The context must be referred to before those questions can be answered.

Turning, then, to the context, which has here to be consulted, the Lord Ordinary, in the first place, thinks that the purpose for which the general disposition and settlement of 1866 was granted, as explained by the testator in the clause introductory to that containing the disposition, leads almost necessarily to the conclusion that the disposition as granted was contingent on the survivance of Mrs Todd. The testator's wish was to increase the provisions already conferred on her ‘in the event of her surviving’ the testator. The ‘therefore’ with which the dispositive clause begins has for its antecedent this purpose, and it is hardly conceivable that the heirs of Mrs Todd, for whom, independently, no desire to provide was expressed, were to be free from the condition by which the right conceived in her favour was effected. In the second place, the clause of the deed in which the executor is nominated also shows that the heirs of Mrs Todd were not regarded by the testator as conditional institutes. Had they been so, they, in case of her predecease, would have been appointed, but they are neither named or referred to in the clause containing the nomination. The testator nominates and appoints ‘my said wife Mrs Helen Coats or Todd to be my sole executor.’ This is all that was required if she was the only person intended to take under the disposition, but it is not all which was required, and certainly was not all which was to be expected, if the will of the testator was that her heirs were to take in the event of her predeceasing the testator. Their omission from the nomination seems plainly to suggest that, though mentioned in the dispositive clause, they were mentioned because they might take through Mrs Todd, and not because the testator intended to make them independent legatees, or, in other words, conditional institutes.

Numerous decisions were referred to at the debate, and these have been taken into consideration by the Lord Ordinary, but there is in truth little, if any, controversy between the parties as to the law of the case, and therefore he thinks it unnecessary to bring them here under review. All will be found collected on pp. 634–36 of the first volume of Mr M'Laren's Treatise on Wills.”

The defender reclaimed.

Argued for him—It was admitted that a settlement to A and his heirs inured to the heir although A predeceased the testator. But it was said that the disposition here was subject to the condition of survivorship. There was certainly no express condition of that sort, but it was sought to derive one by implication from the narrative or cause of granting. But it was not legitimate to construe a legacy by the cause of granting, and what was set forth in the narrative clause here was simply an expression of the testator's wish to benefit his wife. By such reference to the narrative clause it was not competent to override the clear and unambiguous words of the dispositive clause.

Argued for the pursuer—The words “heirs and assignees,” though fixed as to meaning in one sense, varied in meaning according to the variation of the terms of the disposition. The plain meaning of the words here—looking at the whole context—was, that the wife was to take absolutely if she survived. The defender confounded the cause of granting with the intention of granting. There was here no question of falsa causa, but whether the testator had expressed his purpose in making the deed.

Authorities—1 M'Laren (Wills and Succession), pp. 634–36; Inglis v. Miller, 1760, M. 8084; Boston v. Horsburgh. 1781, M. 8099; Torrie v. Munsie, 31st May 1832, 10 Sh. 797; Donald's Trs. v. Donald, 26th March 1864, 2 Macph. 922.

At advising—