Scottish Court of Session Decisions

On 8th June 1907 David H. Jack, accountant, Glasgow, and others, the trustees acting under (1) a trust-disposition and settlement executed by the late Rev. Matthew Crawford, 18 Carrick Park, Ayr, dated 9th December 1902, and codicil thereto dated 25th May 1904, and (2) a mutual trust-disposition and settlement executed by the said Matthew Crawford and Mrs Janet Drife or Crawford, his wife, dated 22nd August 1894, and codicil thereto dated 15th October 1896, raised an action of multiplepoinding and exoneration against (1) the said David H. Jack and others, as the trustees acting under the mutual settlement; (2), (3), and (4) Mrs Annie Pearson or Black or Pearson, wife of J. H. Pearson, warehouseman, London, and her daughter Miss Janet Crawford Black, and Miss Elizabeth Bennett Black, the ultimate beneficiaries under the mutual settlement; and (5) the Rev. Dr M'Crie and others, representing the United Free Church of Scotland, beneficiaries under Mr Crawford's settlement of 1902.

The following narrative is taken from the opinion, infra, of the Lord Ordinary ( Dundas)—The question raised in this multiplepoinding is whether or not the now deceased Rev. Matthew Crawford had power to revoke in whole or in part a trust-disposition and settlement executed by him and his wife, who predeceased him, dated 22nd August 1894, and with relative codicil, dated 15th October 1896, recorded in the Sheriff Court Books of Lanarkshire 20th January 1897. Mrs Crawford died on 4th December 1896. Mr Crawford died on 17th February 1905. He left a trust-disposition and settlement, dated 9th December 1902, and relative codicil, dated 25th May 1904. By the said settlement Mr Crawford professed to ‘revoke and recall all previous settlements made by me, including the mutual settlement made by me and my late wife Janet Drife or Crawford.’

By the said mutual settlement the spouses, ‘for the purpose of settling our affairs and providing for the disposal of our means and estate after our decease,’ assigned, disponed, and conveyed to and in favour of the survivor of them all and sundry the whole means and estate, heritable and moveable, real and personal, of whatever nature and denomination or wheresoever situated, which should belong and be owing and indebted to them respectively at the time of their death; ‘and on the death of the longest liver of us, we dispone, convey, and make over all and sundry the whole means and estate of which we may die possessed to’ trustees named. The trust purposes, after provision for payment of debts and expenses, were ( second) that the trustees should hold and apply the whole free residue and remainder of the said estate, and should pay the free income and revenue therefrom to Mrs Black, there in designed, to be expended by her towards the education and upbringing of her daughters Janet and Elizabeth until they respectively attained the age of twenty-one years; ( third) on the youngest of said children attaining majority, Mr and Mrs Crawford directed their trustees to divide the fee or capital of their said means and estate equally among the said children of Mrs Black, share and share alike, the lawful issue of a predeceasing child being entitled to take their parent's share; ( fourth) in the event of the death of said children before the period of division, the trustees were directed to pay the free income and produce of said means and estate to Mrs Black, and upon her death to pay the residue of the trusters’ said means and estate to the treasurer for the time being of the United Presbyterian Church of Scotland for behoof of objects specifically described. The following clause occurs later—‘And we reserve our respective liferents of the means and estate above conveyed, with power to alter, innovate, or revoke these presents at pleasure.’ By the said codicil, dated 15th October 1896, the said spouses, ‘in terms of the powers reserved to us in the foregoing settlement,’ cancelled the appointment of one of their trustees, and named another in his stead, and made certain specific bequests of moveables.

“By his said trust-disposition and settlement, dated in 1902, Mr Crawford assigned and disponed to trustees (who are the same gentlemen as the trustees surviving and acting under the settlement of 1894) the whole means and estate, of whatever kind, which should belong and be indebted and owing to him at the time of his death, for the purposes therein set forth. By the third purpose the trustees were directed to hold for behoof of the said Janet and Elizabeth Black the sum of £800, which should be paid to them in equal portions, on the

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youngest of them attaining majority, and by the fourth purpose the trustees were directed to pay over the whole residue and remainder of the testator's estate to the treasurer for the time being of the United Free Church of Scotland, to be devoted to objects described in the settlement. As already stated, the testator further revoked and recalled all previous settlements made by him, including the said mutual settlement. By the said codicil, dated 25th May 1904, Mr Crawford revoked and recalled the provisions in his settlement of 1902 in favour of Janet and Elizabeth Black, and in lieu thereof directed his trustees to hold for behoof of these ladies the sum of £150 each.”

Claims were lodged by (1) the Misses Black, who maintained that Mr Crawford had no right to revoke the mutual trust-disposition and settlement, and claimed, enter alia, to be ranked and preferred to the whole fund in medio; and (2) the Rev. Dr M'Crie and others, official representatives of the United Free Church, who maintained that Mr Crawford's settlement effectually revoked the mutual settlement, and claimed, inter alia, (1) “to be ranked and preferred to the whole fund in medio after deduction of the debts, expenses, and legacies for which provision is made in his settlement and relative codicil.”

On 21st December 1907 the Lord Ordinary pronounced an interlocutor, inter alia, finding that Mr Crawford had no power after his wife's death gratuitously to revoke or alter the provisions in the mutual trust-disposition and settlement.

Opinion.—… [ After the narrative ut supra] … The question in the present competition arises between the Misses Black, on the one hand, and the official representatives of the United Free Church, on the other hand. It appears that Mrs Black, the mother of Janet and Elizabeth Black, is the only niece of Mrs Crawford, and her sole next-of-kin and heir in heritage. The nett estate as at Mr Crawford's death is said to amount to over £2100. The claimants are not at one as to how much of this sum represents the estate of Mrs Crawford at her death. For the Misses Black it is maintained that Mrs Crawford's estate amounted to £1196, 12s. 3d., and this sum appears in the confirmation of her executors. The United Free Church, on the other hand, maintain that only £200 or thereby of the said sum truly belonged to Mrs Crawford; that the greater part of the items entered in the said confirmation ‘was money which belonged to her husband, and was invested by him in her name,’ and that ‘this money, in any view, constituted a donatio inter virum et uxorem, and was impliedly revoked by Mr Crawford's said settlement.’ I am not satisfied that these averments are sufficiently specific to be remitted to probation; but, for reasons which I shall presently state, I do not think that I require to determine that question.

The cardinal matter, in a case of this kind, is to arrive at the intention of the parties, as it may be ascertained upon a just construction of the language of the instrument under consideration. Where there is a mutual settlement, under which each party gives and receives onerous consideration, the deed usually becomes irrevocable after the death of the pre-deceaser. And though the survivor may be fiar, and in a position to dispose of the estate inter vivos, it may yet be the result of the settlement that what he leaves at his death goes, as matter of contract, to the beneficiaries, mutually named therein. One must always have regard to the language and presumed intention of the deed as a whole; and it is important to notice, inter alia, what the parties say as to the matter of revocation. Upon consideration of the trust-disposition executed by Mr and Mrs Crawford, I am of opinion that the surviving husband had no power to revoke or alter its provisions, as by his own later settlement he professed to do. The terms of the instrument of 1894 are, to my mind, clearly pactional and contractual. The estates of the spouses are massed and given to the survivor of them, and, on his or her death, to trustees for purposes designed by them both. The parties reserve ‘power to alter, innovate, or revoke these presents at pleasure.’ I read these words, in conjunction with the language of the deed as a whole, as importing a power of joint revocation. It was argued that the words just quoted are immediately preceded by a reservation of ‘our respective liferents of the means and estate hereby conveyed’; and that the word ‘respective’ must be held to import a power to the survivor to revoke the settlement. I cannot accept the suggested construction. The reservation of the liferents appears to be a not uncommon clause of style, and I suppose was introduced as such; but the introduction of the word ‘respective’ is not, in my opinion, strong enough per se to overcome the presumption that a provision stipulated in the settlement by the predeceasing spouse on behalf of her relatives is not revocable after her death by the husband, who had the use and enjoyment of the massed estate during his survivorship. Nor do I think that, even assuming (as was argued to me on behalf of the Church) that the wife's estate amounted only to £200 or thereby, the character of the settlement as a mutual and onerous one would he impaired or destroyed. I observe that in the case of Wood, 1823, 2 S. 549, the wife's separate estate was only £100, while the joint estate at the date of her death (predeceasing her husband) amounted to £1650, more than sixteen times the value of her original estate. Yet her husband, having survived her and remarried, was not permitted by the Court to defeat (by a postnuptial marriage-contract) the rights of his first wife's executors under the mutual settlement. In Corrance's Trustees, 1903, 5 F. 777, a husband was held not entitled to revoke, by mortis causa deed, provisions made in a prior mutual settlement between him and his wife, who had predeceased him, although it appears from the report that she had no separate estate

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of her own. In the present case there is no need to push the doctrine of mutual consideration so far; for Mrs Crawford's estate amounted, even at the lowest estimate, to the not unsubstantial sum of £200. The position of Mr Crawford, after his wife's death, was, I take it, that he could use and consume during his lifetime the capital of the joint estate, but that, in so far as extant at his death, it was subject to the trust purposes of the mutual settlement, which were not (at all events so far as conceived in favour of his wife's relatives) liable to defeat by any mortis causa disposition on his part.

I was favoured at the discussion in the Procedure Roll with a copious reference to authorities. Some of these require, I think, a certain amount of notice. The case of Davidson's Trustees, 1870, 8 Macph. 807, was strongly relied upon by counsel for the Church; but it does not in my judgment support his argument. There was there a mutual settlement by spouses conferring upon the survivor right to possess and inherit all the property that might belong to them at the death of the pre-deceaser; and providing that on the death of the survivor the residue of all that was left should go to the daughter of the wife by a former marriage and her daughter. These ladies survived the husband but predeceased the wife. The rubric bears that it was held that the provision in their favour was a mere substitution which was effectually defeated by a testament executed by the widow, and it was questioned by the Court whether their death in his lifetime did not of itself evacuate the substitution. It may be noted that there was in that case no machinery by way of a trust as there is in the present case. But it is, I think, enough to observe that the true ratio decidendi (or at all events a sufficient one) seems to be that particularly expressed by Lord Deas (p. 810) where he says—‘If it appears that the burden or condition sought to be enforced against the survivor was stipulated for by the pre-deceaser himself, either absolutely or in the event of survivance, that will generally be a case for giving effect to the burden or condition. But here there is no such mutuality. The only burden or condition stipulated for is one which must be presumed to have been stipulated for by the wife in favour of certain of her own relations, and which it would be unreasonable to suppose she meant to be compulsory on herself if she was the survivor, so that she could bequeath nothing even to her own relations with the exception of the two named in the mutual will. The question is really one of intention, and I cannot hold that such was the intention of the parties. I give no opinion as to what might have been theresult had the husband been the survivor.’ I think the case of Craich's Trustees, 1870, 8 Macph. 898, more nearly resembles the present than that of Davidson. Wood's case (already referred to, which was quoted with approval but distinguished in Davidson's case) and Corrance's Trustees (above cited) are also cases where the joint estates were given to the survivor as here. In Corrance's Trustees I observe that the Lord Ordinary (Kyllachy) said in his judgment, which was adhered to by the Second Division—‘The important consideration I think is that these provisions conferred benefits (benefits defeasible no doubt by inter vivos deed, but yet otherwise, if I am right, indefeasible) not upon the wife herself but upon third parties who are her relations, and I see no sufficient grounds nor do I think there is any authority for extending the doctrine of the revocability of donations between spouses to provisions of that description. The cases of Kidd v. Kidd, 2 Macph. 227, and Kerr, 11 Macph. 780, seem to me to be sufficient to support this conclusion.’ I may also notice Gentles, 1826, 4 S. 749, a case of postnuptial marriage contract referred to by Lord Deas in Davidson ( sup. cit.) as useful and instructive. It may be proper to subjoin a note of other cases cited during the discussion, though I do not think it necessary to refer specially to any of them— Hogg, 1863, 1 Macph. 647; lang, 1867, 5 Macph. 789; Melville, 1879, 6 R. 1286; Beattie's Trustee, 1884, 11 R. 846; Nicoll's Executor, 1887, 14 R. 384; Kyd (Kay's Trustee), 1892, 19 R. 1071; Robertson, 1900, 2 P. 1097; Denholm's Trustees, 1907 S.C. 61, and later November 29, 1907, 15 S.L.T. 589; Den yssen, 1872, L.P. 4 Priv. Co. 236; Dufaur, 1769, 1 Dickens 219.

For the reasons which I have now stated I think that Mr Crawford had no power after his wife's death to revoke the mutual settlement, and that the claim for the United Free Church is ill-founded and ought to be repelled.……

“I propose at this stage to pronounce findings embodying the opinion which I have expressed, and to grant leave to reclaim.”

The claimants, Dr M'Crie and others, reclaimed, and argued—The Lord Ordinary was in error in thinking that mutual settlements were presumably irrevocable; the presumption was the other way. They were testamentary deeds, and therefore presumably revocable—M'Laren on Wills, i, 421–2. There was nothing in this mutual settlement to suggest that it was contractual quoad the ultimate destination. The mutuality ceased with the disposal of the fee to the survivor. The ultimate beneficiaries were not near relatives of the spouses; they were the grand-nieces of Mrs Crawford. There was no jus quœsitum in their favour. A limited power to revoke did not exclude the common law presumption that the survivor had power to revoke— Corrance's Trustees v. Glen, March 20, 1903, 5 F. 777, per Lord Kyllachy (Ordinary) at p. 780, 40 S.L.R. 526. The clause of reservation was wide enough to include revocation by the survivor—in any event, it was not so clear as to exclude it— Davidson and Others v. Mossman, May 27, 1870, 8 Macph. 807, 7 S.L.R. 498. Power to revoke would not be excluded save by clear and distinct words of exclusion— Nicoll's Executors v. Hill, January 25, 1887, 14 R. 384, per Lord Craighill at p. 393, 24 S.L.R. 271. There was no such evidence of contract here as

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there was in Robertson's Trustees v. Bond's Trustees, June 28, 1000, 2 F. 1007, 37 S.L.R. 833. In any event Mr Crawford was entitled to revoke quoad his own share.

Argued for respondents (the Misses Black, claimants)—The Lord Ordinary was right. The mutual settlement was a joint deed, and such deeds were presumably irrevocable after the death of one of the parties— Hogg and Others v. Campbell and Others, 1863, 1 Macph. 647, at pp. 658–9. The spouses had dealt with their estates as one whole, as in fact a joint, estate. That was apparent from the expressions used, e.g., “our estate.” That implied irrevocability— Craich's Trustees v. Mackie and Others, June 24, 1870, 8 Macph. 898, 7 S.L.R. 571. So did the existence of a trust. The reservation of power to revoke meant a joint power, and that could not be exercised. Reference was also made to Wood v. Fairley, December 3, 1823, 2 S. 549 (N. E. 477).