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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Collie (Chivas' Trustee) v. Collie and others [1881] ScotLR 19_49 (1 November 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0049.html Cite as: [1881] ScotLR 19_49, [1881] SLR 19_49 |
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Page: 49↓
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A testatrix left a settlement and several codicils. By one of these she bequeathed £1000 to a beneficiary, to be set apart and invested for that beneficiary out of the free residue remaining of her estate after paying legacies contained in writings “prior to the date hereof.” Held (1) that this did not constitute the £1000 a demonstrative legacy to be paid out of the fund so marked out; (2) that ( rev. Lord Rutherfurd-Clark) legacies subsequent in date to it, but containing no mention of residue, were not preferable to it, but fell to be ranked pari passu with it.
Mrs Christian Abercrombie or Chivas died in Aberdeen in November 1878, leaving a trust-disposition and settlement with eighteen codicils thereto, which latter were dated at various times between July 1872 and April 1877. The trust-disposition and settlement had for its purposes payment of debts and of legacies therein mentioned and to be mentioned by separate writings under her hand, the gift of a liferent to certain beneficiaries, and disposal of residue. Among the codicils was one of date March 16, 1875, whereby the testatrix, on the narrative of the settlement and preceding codicils, and of her desire to make certain bequests “should there be a sufficiency of funds after meeting the whole of the gifts, legacies, and provisions” already bequeathed, directed her executor in that event, “out of the residue of my said estate, to make payment of a legacy of £100 sterling to Miss Jane or Jeanie Adam,” and also to invest a sum sufficient to yield certain small annuities to the poor of certain parishes named. Thereafter she left other legacies by codicils, dated in December
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1875 and March 1876, and on January 2, 1877, executed another codicil, in which she directed her trustee, “after paying and making provision for the whole legacies, bequests, and annuities” directed in the settlement and previous codicils “executed by me prior to the date hereof, to set apart and invest from the free residue thereafter remaining of my whole means and estate” a sum of £1000 in favour of Miss Rachel M'Leod. On February 27, 1877, and April 23, 1877, she executed two other codicils, by which various persons were favoured, and in particular by the first—that of February 1877—she left “an additional sum of” £400 to Miss Jeanie Adam. The estate having proved insufficient to meet the whole legacies, and doubts being felt as to the order of preference of the various legacies, a multiple-poinding was raised by the trustee, and claims were lodged by the legatees above described and others. After hearing parties, the Lord Ordinary ( Lord Rutherfurd-Clark ) pronounced an interlocutor finding the whole legacies contained in the settlement and codicils entitled to be ranked pari passu, except the legacies of March 16, 1875, January 2, 1877, and February 23, 1877, above quoted, which legacies he found ought to be postponed to the whole other legacies left by the testatrix. These three legacies he found entitled to be ranked in the following order—First and pari passu, those in the codicil of March 16, 1875, together with the legacy of £400 to Miss Adam, and thereafter, after satisfaction of these legacies, the legacy of £1000 to Miss M'Leod contained in the codicil of January 2, 1877.Miss M'Leod reclaimed, and argued—By “residue” in the codicil of January 2, 1877, under which the claimant was favoured, was only meant the remainder after paying legacies “prior to the date hereof.” It was the fund “thereafter remaining” after paying the legacies. It was a question of intention, and the Lord Ordinary was wrong in holding that the testatrix meant general residue, thereby placing Miss M'Leod's legacy in a less favourable situation than those of later date. The word “additional” in the legacy of £400 to Miss Adam had not the effect of making that legacy like her previous legacy of £100 preferable to the reclaimer's legacy of £1000. But further, the reclaimer ought to be ranked not only pari passu with, but preferably to, the legacies of later date. Hers was a demonstrative legacy out of a marked-out fund—the remainder after paying legacies prior to its date. That made it preferable to those of February and April 1877, to which the Lord Ordinary had postponed it— 2 White and Tudor's Leading Cases, 244.
Argued for Miss Adam—The legacy of £400 was “in addition to” that of £100 by a codicil prior to the date of, and admittedly preferable to, that of Miss M'Leod. In such a case the added gift is, in the absence of intention to the contrary, to be taken with the conditions of, and in the same order with, that to which it is added. The £400 legacy was therefore preferable to that of Miss M'Leod—Roper on Legacies, 4th edit. 873; and cases of Leacroft, 1 Vesey Jun. 279, and Crowder, 2 Vesey Jun. 449, there referred to.
At advising—
I think the line was intended to be drawn once for all at January 2, 1877, and I think the testatrix never intended that the subsequent legacies should interfere with the legacy of January 2, 1877. All this mass of codicils is to be read as one settlement. No doubt the words which introduce the codicil of January 2, 1877, would, if all the codicils had been written at the same time, control all that followed. There was no reason for postponing Miss M'Leod to all the other legatees. 1 think the Lord Ordinary has drawn too fine a distinction in holding that the legacies under the two latest codicils are preferable to that of Miss M'Leod. As to the words “in addition” to the previous legacy to Miss Adam, it is entirely a question of intention, and I think they mean “not in satisfaction.” I am for altering the judgment of the Lord Ordinary to the effect of making Miss M'Leod's legacy rank pari passu with those of February and April, to which the Lord Ordinary has postponed it.
But the material question is, whether a preference is also given to the legacies by the subsequent codicils, so that Miss M'Leod, taking under the codicil of January 2, 1877, is to be postponed not merely to the legacies by the prior, but also to those by the subsequent codicils. I think there is nothing to lead us to that result. But for the words postponing her to the prior codicils she would not be postponed at all, but be ranked pari passu with all the other legatees. What is there then to postpone her to those claiming under the codicils subsequent to that of January 2, 1877? Nothing at all but this, that the subsequent codicils say nothing of payment after satisfying legatees in the legacies prior to Miss M'Leod's. But these come after that date, January 2—one of them in February and one in April. What does the difference in date between January and April signify; still less can that between January and February. It would be the same question if the codicils had been written on the same day. The only words of postponement are those which postpone Miss M'Leod to the legatees under codicils prior to January 2, 1877. Had there been such words in the subsequent codicils, then, indeed, their dates might have mattered. But there are none. The result therefore is that the testatrix provides that the legacies prior to January 2, 1877, shall be satisfied first, that then out of the residue existing after that Miss M'Leod shall have £1000, and the other legacies paid, but all out of the fund left after such payment to legatees under legacies prior to January 2, 1877. These legacies therefore subsequent to that date
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The Court altered the interlocutor reclaimed against, and found the legacies of January 2, February 27, and April 23, 1877, payable pari passu out of the fund in medio, after satisfaction of the legacies prior in date to January 2, 1877.
Counsel for Reclaimer— J. P. B. Robertson—Maconochie. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for Claimants Miss Adam and Others— W. Campbell. Agent— R. C. Gray, S.S.C.
Counsel for Real Raiser and Remaining Claimants— J. A. Reid. Agents— R. C. Gray, S.S.C.; W. J. Cook, W.S.; F. J. Martin, W.S.; Paterson, Cameron, & Co., S.S.C.
