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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Young's Trustees v. Hally and Others [1885] ScotLR 22_643 (22 May 1885) URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0643.html Cite as: [1885] SLR 22_643, [1885] ScotLR 22_643 |
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Page: 643↓
Marriage Contract — Claim of Conquest.
A mutual trust-disposition and settlement executed by three sisters contained the provision that on the death of the first deceaser whatever residue remained of her estates after payment of legacies was to be divided and made over equally between the survivors, and on the death of the second deceaser whatever
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residue remained of her heritable and moveable estate was, after payment of legacies, “to belong to the last survivor.” It also reserved a power to alter and revoke, “but so far only as regards our respective estates.” Held that the right of the last survivor in the residue of the joint estates was a right of property, and that she was entitled to alter the destination of the whole funds contained in the mutual deed. When an antenuptial contract of marriage contained a general clause of conveyance to trustees of acquirenda, held (following the authority of Boyd's Trustees v. Boyd, July 13, 1877, 4 R. 1082) that a life interest in a sum which during the marriage was bequeathed to her in liferent only, and after her death to her children, did not fall under this general conveyance.
The Misses Margaret, Elizabeth, and Magdalene Young, daughters of the deceased James Young, writer in Edinburgh, executed a mutual trust-disposition and settlement dated 3rd March 1852, in which they conveyed to themselves, and the survivor and survivors of them as trustees, with power to the survivor or survivors to assume new trustees, “the whole heritable estate belonging to us, or which shall belong to us respectively at the time of our respective deaths,” and the whole moveable estate “belonging or resting-owing to us respectively at the time of our respective deaths.” After providing for payment “out of our respective estates” of the debts, &c., “of us respectively,” and of certain legacies which “we respectively leave and bequeath,” the deed by its fourth purpose directed that on the death of the first deceaser of them, whatever residue remained of her estate, heritable and moveable, should be divided and made over equally betwixt the survivors of them, and that on the death of the second deceaser of them the residue of her estate should “belong to the last survivor.” In the fifth place, they appointed that on the death of the last survivor of them whatever should remain of their respective means and estates should be paid or made over to their brother, the Reverend Robert Young, whom failing by death, to his lawful issue equally among them, share and share alike. The deed also nominated and appointed the granters, survivors and survivor of them, to be sole executors to the deceaser and deceasers of them respectively, and lastly reserved power to them respectively to alter, innovate, and revoke the same in whole or in part, “but so far only as regards our respective estates.”
The funds of the three sisters were invested on heritable bonds and in public companies, and the securities were nearly all taken in their joint names and the survivors and survivor of them; but some were taken to them jointly without any clause of survivorship.
Margaret Young died unmarried in November 1860, and Magdalene Young died also unmarried in March 1861. Elizabeth Young was thus left sole survivor, and as executrix nominate she gave up inventories of the estates of both her sisters, and expede confirmation thereto before the Commissary of Perthshire in June 1861.
After her sisters' deaths Elizabeth Young dealt with their estates as her own property, drew the dividends, and transferred the most of the investments into her own name. On the 18th November 1872 she executed a deed of assumption, by which under the powers conferred upon her by the mutual trust-disposition she assumed certain trustees to act along with her for the purposes specified in the mutual deed, and conveyed to herself and them as trustees all the heritable estate belonging to the trust-estate at her own death, and in which her deceased sisters and herself had any interest, together with her whole moveable estate at her death, for the purposes mentioned in the mutual deed. Further, under the reserved power of revocation therein contained, she directed her trustees “to invest in good security the (share of the residue of the means and estate belonging to me, or to which I may have right,” falling to her niece Mrs Euphemia Young or Hally under the mutual settlement, and to pay the annual proceeds to her, and the capital to her children after her death, in equal shares. Mrs Hally's share was declared to be alimentary only.
A similar provision was made regarding the share which was to fall to Jane Wylie Young, also a niece, while the share of Robert Young, a nephew, was directed to be held for him till he reached the age of 25, and the interest only and such part of the capital as might be considered necessary to be applied for him till he gained that age.
Miss Elizabeth Young died upon 20th March 1879. She was predeceased by her brother the Rev. Robert Young, who left three children, Mrs Hally, Jane Wylie Young, and Robert Young.
At Miss Elizabeth Young's death questions arose as to whether she had power to revoke the destination of the estates of her sisters Margaret and Magdalene, and as to the portion of the joint estate affected by the deed of assumption and settlement. The present Special Case was accordingly presented, the first parties to which were the trustees acting under the deed of assumption and settlement of Elizabeth Young.
The second parties were Mr and Mrs Hally's marriage contract trustees.
The third parties were Jane Wylie Young and Robert Young, while the fourth party was Mrs Hally.
The first and second parties contended that Elizabeth Young had power to alter the destination in the mutual deed of settlement quoad the whole fund, and that she effectually exercised that power by her deed of assumption and settlement.
The third and fourth parties contended that Elizabeth Young could not alter the destination of the estates of her sisters Margaret and Magdalene, and that the deed of assumption and settlement which she executed only affected her own proper share of the estate.
On this point the following question was submitted to the Court:—“Had Miss Elizabeth Young power under the mutual trust-disposition and settlement to alter and revoke the destination of the funds which originally belonged to Misses Margaret and Magdalene Young, and if so, does her deed of assumption and settlement operate such alteration and revocation?”
The second and third questions in the case
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arose out of the provisions of Mr and Mrs Hally's antenuptial contract. By it Mrs Hally conveyed to the trustees of her marriage-contract (the second parties) “All and whole whatever property, means, estate, and effects, heritable and moveable, real and personal, may belong to her, or which she may acquire in any way during the subsistence of the said intended marriage, from the estates of her father, the said Reverend Robert Young, and her aunts, Elizabeth Young, Margaret Young, and Magdalene Young; and the said John Hally hereby renounces his jus mariti and right of administration in relation to all such property, means, estate, and effects.” Her husband renounced his right of administration. The trustees were directed to invest the funds and pay the annual proceeds to Mrs Hally, exclusive of her husband's jus mariti and right of administration, and his debts and deeds, her receipt being sufficient discharge therefor, while the capital was to go to the children of the marriage.
Mrs Hally contended that the income derived from her share of Elizabeth Young's estate ought to be paid directly to her as it fell due, or even if paid to her marriage-contract trustees that they ought to pay it over to her as received, and could not accumulate it.
They, on the other hand, maintained that she had by the marriage-contract assigned it to them, and that they must accumulate it as capital, and only pay to her the annual income derived from the fund so capitalised.
The following questions were stated on this point:—Does Mrs Hally's share of the income to be derived from the funds to be administered under the said deed of assumption and settlement come within the assignation by her to the marriage trustees, or is her share of income payable direct to Mrs Hally? If the said income falls to be paid to the marriage trustees, is it their duty to accumulate it as capital, or to hand it over as received to Mrs Hally?
Argued for the first and second parties—The answer to the first question depended upon the fourth purpose of the mutual settlement. It was the intention of the trustees that the surviving sister should deal with the whole estate, just as each had dealt with her share. The right in the survivor was one of property, there were no words of limitation, the survivor took the whole residue subject to debts and legacies. After the death of the first sister the estate vested and remained in the hands of the trustees— Douglas' Trs., Dec. 2, 1879, 7 R. 295.
Argued for third parties—The first question ought to be answered in the negative, for the surviving sister had exceeded her powers in dealing with her sisters' shares of the joint estate. There were here three wills in one. Elizabeth Young could only alter the destination quoad her own share. The provisions in the deed and fact of a trust showed the intention of the parties— Grœme v. Grœme's Trustee, July 16, 1869, 7 Macph. 14 and 1062; Milne v. Milne, Jan. 19, 1876, 13 Scot. Law Rep. 223.
Argued for the fourth party (Mrs Hally) on second and third questions. The point was decided by the case of Boyd's Trs. v. Boyd, July 13, 1877, 4 R. 1082.
At advising—
The answer to this question depends upon the construction of the deed of settlement, which is somewhat awkwardly expressed, though perhaps not more so than deeds of this kind usually are. By its terms the three sisters conveyed all that they possessed to themselves as trustees, and to such other persons as they might assume into the trust for the purposes mentioned in the deed. It was no doubt specially provided that the whole estates of the three sisters were to be concentrated in the person of the last survivor, but the question comes to be, What is the true position of the last survivor? Has she an absolute right of property in the accumulated estates, or is she restricted, especially in the matter of testing, to her own share of the common fund. To answer this question it is necessary to look some-what carefully at the various clauses of the settlement, and first of all at the clause of conveyance. The words there used are—“We, the said Margaret Young, Elizabeth Young, and Magdalene Young, do hereby give, grant, &c… heritably and irredeemably, all and sundry lands and heritages of every description, or wheresoever situated, belonging to us, or which shall belong to us respectively at the time of our respective deaths.” Now, I pause here to observe that there is no ambiguity in these words; each of the sisters is conveying to the trustees whatever she happens to have belonging to her at the time of her death. At the death of the first de—ceaser her separate estate passes to the survivors as her trustees, and the same thing happens at the death of the second sister.
But what is the estate possessed by the second and third deceaser at the time of their respective deaths? By the terms of the deed, certain legacies are provided, payment of which is then to be made. As these legacies are bequeathed out of the respective estates, each of the legatees is to receive a triple legacy, and this I understand is not disputed. After mention of these legacies the deed by its fourth purpose goes on to provide that “on the death of the first deceaser of us whatever residue remains of the first deceaser's estate, heritable and moveable, after payment as aforesaid, is to be divided and made over equally betwixt the survivors of us.” Now, what is the effect of these words “to be divided and made over equally betwixt the survivors of us?” The words are very general and wide, and it is difficult to attach any other meaning to them than that the survivors are to get absolutely the free residue of their sisters' share of the estate. This construction is, if possible, made more clear by what the deed declares is to take place at the death of the second sister; for this fourth purpose goes on to provide that “on the death of the second deceaser of us whatever residue shall remain of the second deceaser's heritable and moveable estate after payment of said legacies shall belong to the last survivor of us.” Now, the way that I read
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It has been suggested that the right of the surviving sister was one whereby she might spend the united property during her lifetime, but that she was bound to let the residue pass at her death according to this destination. But this suggestion points at an alleged right of a very anomalous nature, and cannot be entertained, and looking to the construction which I think ought to be put upon clauses 4 and 5 of this mutual deed, I consider, so far as we have yet gone in reading the deed, that the last surviving sister had the right to dispose of the joint-estate in any way she chose.
This brings us to the consideration of the clause of revocation, which is in these terms:—“We hereby reserve power to us respectively to alter, innovate, and revoke these presents, in whole or in part, by any writing under our respective hands, as we may think proper, but so far only as regards our respective estates,” and so on. Now, the construction of this clause contended for by the first party to this case is, that this power of revocation is confined strictly to the original estate of each sister. That however is not the meaning which I am disposed to attach to these words. The power of revocation is no doubt confined to “our respective estates;” but what is the true meaning of this expression? That is to be found by looking back to the clause of conveyance, to which I have already referred. The words undoubtedly mean the estate which belonged to each of the sisters at the time of her respective death. While all the three were alive this clause of revocation must necessarily bear a limited interpretation, because in the event of one of the sisters desiring to revoke while the other two were alive, it is clear that the exercise of this power could only be over her own share of the joint estate. But the clause ceases to have this limited interpretation after the death of one of the sisters, and much more so when it is applied to the case of the last survivor.
I therefore think that Miss Elizabeth Young had power to alter and revoke the destination of the funds which originally belonged to her sisters who predeceased her.
But we are further asked in the second half of the first question whether Miss Elizabeth Young's deed of assumption has operated such alteration and revocation.
Now, that depends upon the provisions of the second deed to which we were referred, namely, the deed of assumption and settlement by Miss Elizabeth Young, in which the following passage occurs:—“And further, in exercise of the reserved power to alter, innovate, and revoke contained in the said trust-disposition and settlement, I do hereby direct and appoint my said trustees to invest on good security the share of the residue of the means and estate belonging to me, or to which I may have right, falling to Euphemia Elizabeth Hunter Young, my niece, eldest daughter of the deceased Reverend Robert Young, minister of the parish of Auchterarder, under the said trust-disposition and settlement, and to pay to her the annual interest or proceeds thereof during all the days of her life, and after her death to pay over the capital sum in equal shares to her children upon their respectively attaining majority.” That is to say, in other words, Euphemia Young's interest is to be a purely alimentary one. The construction which the first party puts upon the words “estate belonging to me” is, that it is a direction to the trustees to invest the estate belonging to Miss Elizabeth Young at the time of her death for behoof of her niece Euphemia Young, and this I think to be the true construction. The other contention which was offered — that it meant Elizabeth Young's share at the time of the mutual deed—would, I think, involve a misconstruction of the deed. All the more when, looking to the words used, there cannot I think be any doubt about this lady's intention.
The second question raises a point of a totally different kind, and one which falls to be determined by an examination of Mrs Hally's marriage—contract, a deed which was executed subsequent to the deed of assumption. The question is whether Mrs Hally's share of the income to be derived from her aunt's estate is to be paid to her marriage-contract trustees, or whether it is to be paid directly to herself? I am very clearly of opinion that it is not to be paid to her trustees, and that for the reasons stated by their Lordships of the Second Division in the case of Boyd's Trustees [ sup. cit.], and especially on the grounds stated in the opinion of Lord Moncreiff.
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Upon the first question I am not so clear. The true result of this trust-deed in my opinion is (and had I been trying the question alone I should have so decided it) that the last survivor of the three sisters could test only upon her own share of the joint estates, and as regards the power of revocation, I should be inclined to hold that it applied only to the individual shares of each of the sisters.
Upon the other point referred to by your Lordships I am equally clear, and I consider it settled by the case of Boyd's Trustees.
The Court answered the first question in the affirmative, and the second in the negative.
Counsel for First and Second Parties— A. J. Young. Agents— Mylne & Campbell, W.S.
Counsel for the Third Parties— Law. Agents— Mylne & Campbell, W.S.
Counsel for the Fourth Party— Shaw. Agents— Drummond & Reid, W.S.
