Scottish Court of Session Decisions

Mr and Mrs Hagart were married in 1833. Mrs Hagart was then institute of entail in possession of the entailed estate of Glendelvine.

By antenuptial contract of marriage Mr Hagart assigned and disponed to Mrs Hagart in liferent, in the event of her surviving him, and to the children of the marriage, excepting the child who should succeed to Glendelvine, the whole estate, heritable and moveable, that might belong to him at the time of his death, subject to a power of apportionment reserved to himself, and failing such apportionment, then equally among them. These provisions Mrs Hagart accepted as in full of her legal rights, and they were declared to be in full of the legal rights of the children of the marriage. In consideration of the said provisions Mrs Hagart granted certain provisions in Mr Hagart's favour by way of annuity out of the entailed estate, in the event of his survivance, and she also granted certain provisions out of that estate to the children who should not succeed to her therein. Mrs Hagart further assigned and disponed to Mr Hagart in liferent, in the event of his surviving her, and to the children of the marriage in fee, the whole estate, heritable and moveable, that might belong to her at the time of her death, excepting always the rents of Glendelvine.

In 1861 Mr and Mrs Hagart executed a mutual trust-disposition and settlement. By this deed Mr Hagart conveyed to trustees, of whom Mrs Hagart was a sine qua non, his whole estate, heritable and moveable, in trust, after payment of debts and expenses, for payment to Mrs Hagart of the free revenue of the residue of his estate for her liferent use allenarly during her life, and to his childen equally among them in fee, excepting the child succeeding to Glendelvine. Mrs Hagart on her part, in addition to the annuity and provisions secured to her husband and children out of the rents of Glendelvine, disponed to Mr Hagart in the event of his surviving her, whom failing by his predeceasing her to their said children equally amongst them in fee, excepting always the child who should succeed to Glendelvine, her whole estate, heritable and moveable, then belonging

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or which should belong to her at the time of her death. Further, the spouses reserved to them or either of them during their joint lives power to alter or revoke their disposition in whole or in part so far as their respective estates were concerned, and also power to Mr Hagart, in the event of his being the survivor, to alter or revoke the foresaid trust conveyance as he should think fit.

Mr Hagart died in 1869. After his death the estate of Glendelvine was sold with the consent of the three next heirs of entail, and in security of the provisions which she had granted to the younger children out of the estate, Mrs Hagart assigned to trustees certain policies of insurance upon her life. After the disentail and sale had been carried through, the debts of both spouses paid, and the future premiums on the policies redeemed, a sum of £22,000 remained for investment, and this sum was left in the possession and control of Mrs Hagart.

In 1894, Mrs Hagart being then eighty-six years of age, a petition was presented by her surviving children (two sons and five daughters), other than her youngest son Francis, praying the Court to sequestrate the estates of the deceased Mr and Mrs Hagart, and to appoint a judicial factor to hold and administer them.

The petitioners set forth and founded on the terms of the marriage-contract and mutual disposition executed by Mr and Mrs Hagart. In articles 8 to 10 the petitioners averred that Mr Hagart had left estate exceeding his debts, and consisting in part of a claim for the amount of improvement expenditure laid out by him on the estate of Glendelvine, and of amounts assured by various policies on Mrs Hagart's life; that Mrs Hagart's estate at this time consisted solely of her interest in Glendelvine, and the interest, if any, she might have established in the said policies of insurance; that Mr Hagart's estate could not have been extricated from that of his widow without sacrificing her life interest in the entailed estate; that in order to provide a residuary fund for Mrs Hagart's benefit it was resolved to sell the estate; that to facilitate the same object her three eldest sons agreed to accept sums greatly less than the true value of their interests as consideration for consenting to the disentail; that it was a condition of their doing so, and of the transaction and argument between them and their mother that the equal division of their father's and mother's estates among the whole members of the family provided for by the marriage-contract and mutual disposition should be irrevocable; that on the same footing the younger children agreed to accept the insurance policies as security for the provisions made for them by their mother though these policies belonged to Mr Hagart's estate; that in consequence of the said transaction and agreement it became unnecessary to extricate Mr Hagart's estate from that of his widow, and the two estates were treated as one, and managed as such, Mrs Hagart enjoying the whole income, and Mr Hagart's trust being allowed practically to remain in abeyance.

The petitioners further averred (in articles 12, 13, and 14) that Mrs Hagart's health was impaired and her mind weakened and rendered facile by age, and that she had been for some time completely subservient to the will of her youngest son, a man of loose and disorderly habits, who had gained a dominating influence over her, which he used to obtain sums of money from her; that in this way a sum of £5000 out of the £22,000, which represented the joint estates of Mr and Mrs Hagart, had already been dissipated, and that Mrs Hagart had also incurred further pecuniary obligations on this son's behalf.

The petitioners submitted (1) that upon a sound construction of their parents' marriage-contract and mutual disposition, et separatim, in respect of the transaction and agreement and actings of parties narrated in articles 8, 9, and 10, the whole children of the marriage were entitled to equal shares of the capital of their mother's estate at her death, and that she was not entitled to dissipate said estate by gratuitous gifts inter vivos, particularly by gratuitous gifts in favour of one child to the prejudice of the other children; and separately (2) that in the circumstances set forth in articles 12, 13, and 14, the appointment of a judicial factor was necessary for the protection of their just rights and of their mother's interests.

Answers were lodged for Mrs Hagart. She claimed no right to expend any part of her husband's estate, but explained that her husband had left practically no estate; she denied that the deeds founded upon by the petitioners disabled her from dealing with her own estate as she might think fit, or that she had entered into any agreement with her children fettering her power of dealing with the same; she further denied the averments made as to the character of her youngest son, and the influence which he was alleged to exercise over her. She admitted that she had given this son pecuniary assistance to enable him to start in business, but stated that she had assisted her other sons to at least an equal extent.

Argued for the petitioners—Although there was no direct precedent for the application, the appointment craved was quite consistent with the powers vested in the Court, and was required by the peculiar circumstances of the case. The first question was, whether the respondent was entitled to interfere with the equal division of her estate among her children, which was provided for both by the marriage-contract and by the mutual settlement. If she was not entitled to make an unequal division by mortis causa deed, she was not entitled to disappoint their expectations by inter vivos gifts. Such gifts would be in fraud of their rights. The question above stated raised three other questions—(1) Was there anything in the marriage-contract which gave the respondent a power of apportionment as to her own estate? (2) Had she bound herself to an equal division by the mutual disposition?

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(3) Had she so bound herself by the transactions which took place when Glendelvine was sold? If the petitioners' argument prevailed on any of these points, it would be established that the respondent had no power of interfering with the equal division of her estate among her children. (1) It was open to question whether the law would give to the wife by implication the power of apportionment which it gave to the husband, and it was also questionable whether there was anything in the marriage-contract to give rise to the implication. The provision in the wife's case was in marked contrast to that in the case of the husband. There was no reserved power of apportionment in her favour, and the most reasonable construction of the deed was to hold that though the provisions were testamentary the children's succession was protected, and that the wife was not intended to have the power of interfering with the equal division of her estate among them. (2) Even if it were held that the respondent had under the marriage-contract an implied power of apportionment, she had deprived herself by the mutual disposition of the right to exercise that power after her husband's death, for the disposition being a mutual deed, the death of the husband rendered its provisions irrevocable. (3) The respondent was barred by the transaction and agreement which she had entered into with her children at the time when Glendelvine was sold from interfering with the equal division of her estate among them. But even if it were assumed that the respondent could apportion the estate which she had settled upon her children, her power could not be greater than that of a father in like circumstances, and was limited to making a rational division among her children by mortis causa deed. She was not entitled to disappoint their expectations by inter vivos deeds. Gifts inter vivos would be held to be in fraud of the children's rights—Fraser on Husband and Wife, p. 1369; Campbell v. Campbell, 1738, M. 13, 004; Ponton v. Ponton, February 14, 1837, 15 S. 554; Arthur and Seymour v. Lamb, June 30, 1870, 8 Macph. 928; Greenoak v. Greenoak, January 12, 1870, 8 Macph. 386; Gillon's Trustee v. Gillon, February 8, 1890, 17 R. 435; Moir's Trustees v. Lord Advocate, January 7, 1874, 1 R. 345; Lowden's Trustees v. Lowden, June 1881, 8 R. 741; Champion v. Duncan, November 9, 1867, 6 Macph. 17, per Lord Curriehill, p. 22; Cowan v. Young, 1669, M. 12, 942; Cairns v. Cairns, 1705, M. 12, 862; Fraser v. Fraser, 1677, M. 12,859. [ Lord M'Laren referred to the following cases as showing that where a parent had by marriage-contract settled the estate then belonging or which might belong to him at the time of his death upon his children, he was free to dispose of property acquired by him in the interval— Buchanan's Trustees v. Whyte, February 25, 1890, 17 R. (H. of L.) 53; Wyllie's Trustees v. Boyd, July 10, 1891, 18 R. 1121; Macdonald v. Scott, L.R., 1893, App. Cas., per Lord Watson 655.] These cases no doubt showed marriage settlements might be so worded as to admit of gratuitous alienation by the parent to third parties of property acquired during marriage, but they did not support the view that a parent was entitled by inter vivos gifts to one child to defeat provisions made to the other children. If the contentions submitted on the deeds were sound the petitioners were entitled to have their rights protected, and protection could only be given by the appointment of a factor. But even if the petitioners' argument on the deeds were not sustained, their averments as to the respondent's facility and the dominating influence exercised over her by her youngest son were relevant, and would, if established, entitle them to the remedy they craved. A person who was facile and subject to impetration was not necessarily a person who could be cognosced or to whom a curator bonis could be appointed— Morrison v. Maclean's Trustees, February 2, 1862, 24 D. 625. The only remedy for the state of things which the petitioners alleged to exist was the appointment of a factor, and that remedy they were entitled to have if their averments were proved to be true.

Argued for the respondent—The application was incompetent and the petitioners' averments were irrelevant. Neither the marriage-contract nor the mutual disposition deprived the respondent of the power of dealing with her own estate as unlimited fiar, the provisions in favour of the children in both deeds being purely testamentary. A fiar could disregard a prohibition against alienation— Michel's Judicial Factor v. Oliphant, December 7, 1892, 20 R. 172. The mutual disposition was a revocable deed— Mitchell's Trustees v. Mitchell, June 5, 1877, 4 R. 800. The averments as to a transaction between Mrs Hagart and her children were irrelevant. The petition might be disposed of on the ground that it was incompetent. It was not alleged that the respondent was incapax. If it had been, the proper remedy would have been the appointment of a curator bonis. Such an appointment as was now craved was unprecedented, and to grant it would open the door to extraordinary applications being made to the Court.

At advising—