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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v. Campbells (Campbell's Executors) [1878] ScotLR 15_643 (19 June 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0643.html Cite as: [1878] ScotLR 15_643, [1878] SLR 15_643 |
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Certain funds were secured by antenuptial marriage-contract to “A and B and to the longest liver of them in liferent for their liferent use allenarly, and to the child or children to be procreated betwixt them in fee, ” with a provision that the said funds “shall be divided between or among the said children in such way as the said A and B mutually or the longest liver of them shall direct by a writing under their hands, and failing such writing to be divided equally among them, share and share alike.” The survivor of the marriage made a deed of apportionment,
Page: 644↓
but failed to make provision for the representatives of one of the sons of the marriage who had died intestate and unmarried before the execution of the deed. Held, following Watson v. Marjoribanks, February 17, 1837, 15 S. 586, that the deed of apportionment was disconform to the terms of the marriage-contract and must be reduced, and the funds divided equally among all the children. Observations on the case of Watson v. Marjoribanks.
In October 1812 James Campbell and Sarah Jean Forbes, daughter of Dugald Forbes, entered into an antenuptial contract of marriage in which there occurred the following clauses—“The said Dugald Forbes binds and obliges himself, and his heirs, executors, and successors whomsoever, to give and provide to the said Sarah Jean Forbes and James Campbell and to the longest liver of them in liferent for their liferent use allenarly, and to the child or children to be procreated betwixt them in fee, whom failing to the said James Campbell and his heirs and assignees, an equal share along with his other children of the whole means and estate, real and personal, of which he shall die possessed, ” … . “which share of the funds of the said Dugald Forbes so provided to the said Sarah Jean Forbes and James Campbell in liferent and to their children in fee as aforesaid shall be divided between or among the said children in such way as the said James Campbell and Sarah Jean Forbes mutually, or the longest liver of them, shall direct by a writing under their hands, and failing such writing to be divided equally between or among them, share and share alike.”
Four sons and two daughters were born of the marriage, and they all survived their father James Campbell, who died in 1830. Mr Campbell left a deed of settlement, dated 1st November 1830, which contained an apportionment of the fund in question; but as his wife did not give her assent, and as she survived him, it was never regarded or acted on as being an effectual division. On 16th February 1870 Mrs Campbell executed a trust-disposition and deed of settlement which purported to make an apportionment among her children of her share of her deceased father's estate, in exercise of the power to that effect contained in the antenuptial contract, but she apportioned nothing to the heirs or representatives of her son Alexander Campbell, who had died unmarried and intestate on 8th January 1870, before the execution of the deed. In these circumstances the question arose, whether the apportionment in Mrs Campbell's trust-disposition was a good one, or whether the estate did not fall to be divided equally among all the children?
This was an action at the instance of Dugald Forbes Campbell, eldest surviving son of the marriage, against James Campbell junior and others, executors-nominate of the deceased John Campbell, the eldest son of the marriage. The summons concluded for reduction (1) of the deed of settlement by Mr Campbell, and (2) of that by Mrs Campbell, both mentioned above. It was not disputed that the first deed was not a good apportionment.
The Lord Ordinary granted decree as asked.
The defenders reclaimed.
At hearing before the First Division it was stated that the Lord Ordinary had made it understood that the ground of his judgment was that the case was ruled by that of Watson v. Marjoribanks, Feb. 17, 1837, 15 S. 586.
Reclaimer's authorities— Crawcour v. Graham, Feb. 3, 1844, 6 D. 588; Baikie's Trs. v. Oxley, Feb. 25, 1862, 24 D. 589; Moir's Trs. v. Moir, June 17, 1871, 9 Macph. 849; M'Donald's Trs. v. Macdonald, March 10, 1874, 1 R. 794.
Respondent's authorities— Watson v. Marjoribanks ( supra); Sivwright v. Dallas, Jan. 27, 1824, 2 S. 543; Stein v. Stein, Dec. 8, 1826, 5 S. 93; Murray v. Borthwick, M. 3237.
At advising—
No doubt there is this difference between this case and that of Watson, that there one of the parties who had died, and to whom no share of the fund was given, was represented by executorsnominate, and the other by his creditors, whereas here Alexander having died unmarried and intestate before the execution of the deed of division he was really represented by his brothers and sisters. So that the fund in fact comes to the same persons who would have taken the whole even if a provision had been made for Alexander and his representatives. That is a point of difference as to facts, but it is not sufficient to affect the principle upon which Watson was decided, and on which this case follows. That principle is, that the omission from the deed of apportionment of one of the objects of the power is fatal to the exercise of the power.
It has been said that the authority of the case of Watson has had doubt thrown upon it. To that I cannot assent. It is true that in the case of Crawcour v. Graham Lord Cuninghame did express certain views adverse to the decision in Watson, but that was merely the expression of opinion of one Judge, and no other member of the bench concurred with him. On the contrary, they expressed themselves in such a way as to show that they regarded it as a final authority. Looking at the eminence of the Judges who decided the case of Watson, and the length of time
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In common with some of your Lordships, I may regret that such was the rule so established, and I may think that the opposite decision would be the better. At anyrate, it is some consolation to know that what we cannot do has been done to some extent by a recent statute (37 and 38 Vict. cap. 37), but that statute does not apply here.
On these grounds I think we are bound to adhere to the Lord Ordinary's interlocutor.
But, with your Lordships and the Lord Ordinary, I am of opinion that the question is concluded by the authority of the case of Watson v. Marjoribanks. In that case the lady had divided the fund amongst the children surviving her only, and these children were all parties, and were the only parties to the litigation. David Marjoribanks, who was the leading objector to the division, was the executor and beneficiary under the will of Charles his brother, to whom he maintained a special share should have been allocated. The Court held that in order to make an effectual appointment it was necessary to allocate a special share in favour of Charles, so that David, the survivor, should have the benefit of that particular share, and the same principle applied to the share of the other brother Edward, who had died intestate, and who was represented by his brothers and sisters. The argument maintained in support of the deed was the same as that here pleaded by the defenders, and the circumstances were substantially the came as occur in this case. There were no creditors parties to the litigation, and although creditors’ interests were mentioned in the argument, it ws nevertheless a acase the same as the present, in respect it was a litigation truly amongst the children and in reference to the division of the fund amongst the children. That case has been regarded as the leading authority in our law from 1837 downwards, and the main—perhaps the only substantial—point on which I have ever understood that the case of Crawcour v. Graham threw doubt on it had reference to the rights of creditors to come in and claim a share of the fund to be divided, rather than to such a question amongst surviving children as we have here.
Concurring as I do, then, in thinking that this case is ruled by the case of Watson v. Marjoribanks, I am of opinion that the interlocutor of the Lord Ordinary should be adhered to.
The Court adhered.
Counsel for Pursuers (Respondents)—Dean of Faculty (Fraser)— Rutherfurd. Agents— Gibson Craig, Dalziel, & Brodies, W.S.
Counsel for Defenders (Reclaimers)— Gloag— Kinnear. Agents— Ronald & Ritchie, S.S.C.
