Mrs. Sarah Aglionby, otherwise Lowthian, Widow of Richard Lowthian v. Georoe Ross, Nephew and Heir-at-law of Richard Lowthian, and his Trustees [1797] UKHL 3_Paton_621

UKHL

Mrs. Sarah Aglionby, otherwise Lowthian, Widow of Richard Lowthian v. Georoe Ross, Nephew and Heir-at-law of Richard Lowthian, and his Trustees

[1797] UKHL 3_Paton_621

and become bound to pay all the seller's debts, many of which were heritable constituted, (he having been previously bound by bond along with the seller for those debts) the question was, Whether this obligation was personal, and fell to be deducted in estimating the widow's jus relictæ jus relictæ : Held that the obligation was moveable in its nature, and fell to be deducted in estimating the moveable estate.

(1.) A husband, before his death, having estates both in England and Scotland, executed a series of deeds, by which he left his wife the English estate, and also the liferent of one of the Scotch estates, &c. In a claim made by her for her widow's terce: Held, that the act 1681 did not refer to unilateral deeds, but to contracts of marriage, or other such deeds of a conventional nature, to which both husband and wife are consenting parties; and therefore she was not barred from claiming her terce and jus rcliclœ jus rcliclœ as well as the provisions so left her. (2.) The deceased having purchased an estate,

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Mr. Lowthian, who was a Scotsman, and domiciled in Scotland, died there possessed of considerable estates both in Scotland and England. Previous to his death he executed a series of deeds intended to settle his Scotch estates, and disponed them in favour of his wife, the appellant. He at same time, by separate deeds, settled on her certain of his estates in England. The deeds in regard to the Scotch estates, were made the subject of a reduction by the respondent, the heir-at-law, on the ground of incapacity, and nullities in their execution; and after considerable litigation, which ended in an appeal to the House of Lords, the deeds were set aside and reduced.

This reduction did not affect her right to the liferent of the estate of Nineholm in Scotland, left her by a deed granted by her husband, which was left entire to her. She was also left, by separate deed, his whole plate and household furniture, and by this settlement the devise also of the English estate.

The respondents then brought an action of count and reckoning against her, to make her account for her intromissions with the rents, and her management of the estates. In answer to this claim she insisted: 1. That she was entitled to the rents of the English estates devised to her by her husband's will, this not being reduced, and being irreducible. 2. That she was also entitled to a third part of the rents of the real estate in Scotland in which her husband died infeft, as the widow's terce. 3. Also to the half, or relict's part (there being no children) of her husband's free moveables, after deducting debts considered moveable. The respondents contended that the appellant was not entitled both to the English estates, and also to claim her terce over the Scotch estates. That she was only entitled to the one or the other, and not to both; and was bound to make her election; and founded on the Scotch act of parliament 1681, c. 10, enacting that a widow shall be excluded from her terce , where the husband has granted to her a particular provision “by a contract of marriage or other writ before or after marriage, unless it be expressly provided in the

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May 21, 1796.

Jan. 20, 1797.

Feb. 9, —

Of this date, the Lord Ordinary, (Lord Justice Clerk) pronounced this interlocutor, “Finds, that in order to bar a claim to the terce, it is not necessary that the conventional provision should be constituted over lands in Scotland: Finds it acknowledged, that the defender is possessed of a settlement made by her husband, in her favour, of an estate belonging to him in England: And in respect it is not alleged by the defender that any other person is in possession of that estate, or competing with her for it, or that she herself is not in possession of it, in terms of her said settlement; and further, in respect that she does not offer to convey her right to that estate in favour of the pursuers, or even to repudiate her husband's settlement thereof: Finds, that she is not entitled to claim a terce out of the lands in Scotland: Finds, that the obligation granted by Mr. Lowthian to the trustees of George Mackenzie, for the price of the estate of Netherwood, and debts owing by George Mackenzie, being of a moveable nature, must affect the jus relictæ jus relictæ ; and, therefore, upon the whole, refuses the desire of the representation, adheres to the former interlocutor, and discharges any more representations.” On two separate reclaiming petitions the Court adhered. *

Footnote

* Opinions of Judges:—

Lord President Campbell said—

“This is a question upon the construction of the act 1681. The terms of the act are general, including conventional provisions of whatever kind; 2d. point, The interlocutor is also right, the obligation by Mr. Lothian being merely personal. He purchased the lands at a certain price, and also obliged himself to pay all Mr. Mackenzie's debts, he being put in possession of all his funds.

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Against these interlocutors the present appeal was brought.

Pleaded by the Appellant .—Neither by the common law, nor by the statute, nor by the intention of the deceased, is the appellant debarred from taking both the lands devised to her in England, and her terce over the lands in Scotland, because the rule, that one who takes under a will cannot set up a claim in contradiction to what is either expressed or implied in that will, does not apply here. That rule is always founded on a presumed intention of the donor to give only one or the other, unless a clear contrary intention to give both expressly appear. Now, this contrary intention is precisely what appears in this case. The intention of Mr. Lowthian to give his wife at least much more than a terce of his Scotch estates, besides the land in England , is demonstrable in all his deeds. And the question comes to be, how far the act 1681, c. 10, nullifies that intention, and debars her from claiming her legal terce out of the lands in Scotland, by the devise to her of certain lands in England, made by her husband's last will. On a sound construction of the statute, the “provision” therein referred to, does not refer to deeds of a testamentary and unilateral nature. It refers only to provisions conferred by “ contract of marriage, or other writ before or after marriage ,” thereby comprehending only those deeds, inter vivos , to which both husband and wife are consenting parties. It is to mutual deeds to which both parties consent, and which are only of a conventional nature, that the act seems to point at. The preamble sets forth, “That sometimes, through the ignorance and inadvertence of writers and notaries, clauses are inserted in contracts of marriage , containing provisions by husbands in favour of their wives, without mentioning the terce that is due to her by law, or expressing the provision to be granted in satisfaction of the terce, whereby occasion is given to relicts to claim a terce out of their husband's estates, over and above the provision,” &c. This whole preamble, then, refers to conventional provisions . In other words, those made by writings or contracts, to which both husband and wife are parties. It is true, that the enacting clause of the statute is broader in its terms, in using words such as these, a—

in favour of his wife, either in a contract of marriage or some other writ before or after marriage, the wife shall be thereby excluded from a terce out of any lands or annual rents belonging to her husband, unless it be expressly provided in the contract of marriage, or other writ containing the said provision, that the wife shall have right to a terce over and above the particular provision conceived in her favour.”

“That in time coming, where there shall be a particular provision granted by a husband

Footnote

“On the first point, Court unanimously for adhering. 2nd point, Lord Justice Clerk said, The obligation for price clearly personal.”

President Campbell's Session Papers, vol. lxxxiii.

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But still it is obvious, that the “other writs” alluded to are such deeds to which the wife is a party; for otherwise, unless this were held to be the construction of the act, the husband might cut off her claim of terce by providing her with the most illusory provision imaginable—a jewel, a ring, or a trinket, might suffice, and be called a provision in the sense of the act. The act, therefore, relates to grants of the nature of an annuity or jointure, to which both parties consent. This construction is farther supported by the rule in law, that when general words are subjoined to an enumeration of particulars, it cannot be extended to things of a different description. The words are, “a contract of marriage, or some other writ, before or after marriage;” and the particular specified being a contract of marriage, the general words, “some other writ,” must be understood to signify other writs of the same nature, importing a contract or agreement between the parties. Besides, the preamble states, that sometimes, through the ignorance or inadvertency of the writer, certain things were done “contrary to the meaning and intention of the parties contractors ;” from all which it was clear that the act only refers to a provision settled between the parties during their lives, by contract or mutual agreement, binding on both. 2d. But even supposing it to apply to unilateral deeds, such as wills, even then the statute could not debar her from her terce, because, in conveying to her the English estate, it is conveyed to her in exact words of the statute, over and above the lands left to her by the Scotch deed. 3d. Besides, the exclusion of the terce, implied in the grant, or at least in the acceptance of a conventional provision, being founded upon a statutory regulation of the municipal law of Scotland, is ineffectual beyond the territory of the legislature which enacted it, and cannot be applied to a landed estate in England or any foreign country. The framers of the act 1681, had in view nothing but Scots deeds and Scots property, as is evidenced by the words of the preamble, as well as the enacting clause of the act.

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Jus relictæ Jus relictæ

Mr. Lowthian took upon himself the payment of George Mackenzie's debts, some of which were clearly heritable by constitution; but he undertook this obligation as connected with the purchase of his estate.— “I hereby agree to become purchaser thereof, at twenty-five years' purchase of the present free rental of those subjects. And as I have already agreed to make payment of all Mr. Mackenzie's debts, I expect to be put in possession of all his funds , and shall oblige myself to hold you indemnified from all challenge at the instance of any of my heirs,” &c. If he had substituted his own obligation to the creditors for those debts, then the obligation would have been moveable; but as this obligation is undertaken to third parties, M'Kenzie's trustees, he was put under the same obligation as M'Kenzie was, which was confessedly heritable, and therefore this obligation ought not to affect the jus relictæ jus relictæ .

Pleaded by the Respondents .—Terce. The preamble and enacting clause of the statute, quoted by the appellant, are so clear, that there is neither occasion for commentary or room for construction on them. The great object of this statute was to provide against the evil of omitting to mention about the terce, in conferring special provisions, by which, contrary to the intention of the deceased, the widow has got often both the one and the other. But the statute now declares, that a provision to a wife shall be held to exclude the terce, unless it be expressly provided to her over and above her terce. And there is no ground whatever for contending that this enactment has reference only to

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Jus Relictæ Jus Relictæ .

The obligation to pay George M'Kenzie's debts was no doubt connected with an obligation to pay the price of his lands, but an obligation to pay the price of his lands, undertaken to his trustees, and out of the proceeds to pay all his debts, so far as it would go, and all others, in so far as he was otherwise bound, was a personal obligation. In so far, therefore, as those debts were not all paid at the time of Mr. Lowthian's death, it follows, as a consequence of this personal obligation, that they attach to the personal estate.

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Lord Chancellor Loughborough said,—

“ My Lords ,

This cause is of some importance in the law of Scotland, and deserving of your Lordships' attention. It contains two principal questions, 1st, Whether an estate in Cumberland, devised by the will of Mr. Lowthian to his wife in fee, is a bar to her claiming terce or dower out of his real estate in Scotland? And if it be not a bar, whether it shall not put the widow to her election, either to renounce the terce or the estate? I state it in this double point of view; because there was some confusion in the Court below, in distinguishing whether the taking the estate did bar the terce, or put the widow to her election.

The second question is, Whether a debt, or certain debts, owing by Mr. Lowthian, are to be deducted from the widow's half of his personal estate, in a due proportion; or whether the same shall fall solely on his next of kin. Of these there were two classes, one for the price of an estate bought from the trustees of George Mackenzie; and the other, the debts due by Mackenzie, which Mr. Lowthian became bound jointly with him to discharge; but I make no distinction between these two classes.

On the first point, Whether the devise of a real estate in England be a bar to terce in Scotland? I shall submit to your Lordships a few short observations, on what I have observed in the law of Scotland with regard to terce. By the decisions, previous to the act of Parliament 1681, it was held that a provision, to a wife of the liferent of a great part of her husband's estate, did not bar her terce as to the remainder; nor is this rule remarkable, for the same prevails in this country. In 1681, a case occurred, reported by Fountainhall, which brought this rule into question; a gentleman, in his contract of marriage, provided his wife to a jointure of a moiety of his real estate, and she afterwards claimed her dower out of the remainder. Sir George Mackenzie mentions that this case was referred from the Session to the Parliament; that was an inaccuracy of expression; the cause was not referred to the Parliament to be tried, but only to the effect of producing an act of Parliament, which was passed, not having a retrospective effect, but providing in future that the question could only arise from the ignorance or inadvertence of

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All the text authorities in the law of Scotland agree, and the language of the law, calling this a conventional provision, and the words used in the pleadings in the cause, evince the sense of the statute, and describe the bar of dower as by conventional , not by revocable provisions. Wherever the act applies, it is compulsory, and imperative, and no election is given. That is the bar uniformly described to which the act applies a compulsory effect; The widow cannot set aside conventional provisions; but, in the case of a provision after marriage, which can be set aside , the wife is not barred from her terce; but if she claim it, she cannot take both, and may be put upon her election.

This was the effect, and the whole effect, of the act 1681; it removed former prejudices, and restored a liberty to the courts to consider whether provisions revocable, or revocable sub modo , should not put the widow to accept the legal provisions, or renounce them. No doubt is held that provisions out of land by deed, voluntary or properly revocable, might put the widow to her election; provisions out of personal estate by will might do the same. Beyond all controversy, express words in a deed would do this, or if there were a presumption that the will of the grantor was such, the widow might be put to her election.

With respect to Mr. Lowthian's will, no ground of presumption appears, that, by a devise in fee of an estate in England, he meant to bar the appellant's dower out of his Scots estates. I lay no stress on the circumstance of its being an English estate. A life-interest in an estate in England, or out of money in the funds, might put her to her election; but, in the case of the grant of an estate in Scotland, if in fee , I should hold it no bar to terce or reason to go to election; if in liferent it would be different. It is a strong feature in the present case, that this plea is only set up against the terce, and that the widow has a great interest in the personal estate as relict; if Mr. Lowthian had meant to exhaust his bounty by the devise of the estate, he would have provided that the jus relictœ jus relictœ should be cut off as well as the terce. There occurs one observation more upon this point. I find, in reading the will, a strong circumstance against presuming that Mr. Lowthian meant to restrict his widow to the will; he there refers to certain deeds which he mentions to have executed. In the pleadings, there was a see-saw sort of argument upon this point; that these deeds were set aside on account of fraud or circumvention, and that they were not the deeds of Mr. Lowthian; but whenever an heir-at-law does not set aside a will, he is bound to admit it altogether, and he cannot cut and carve upon it; it must be held a sound will, and the testator as of competent understanding. At the beginning of this will, there is no appearance of restriction

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On the 2nd point, though I agree with the judgment of the Court; yet, as a very able and ingenious argument was maintained by the appellant, I am called upon to say something on the subject. 1st. Undoubtedly I must feel touched also, as stated by Mr. Grant, with the unanimous decision of the Court on a point of Scots law; but, 2nd. I do not go upon that only, but upon the principle of the decision, which appears to me to be right.

Mr. Lowthian was bound in several debts of George Mackenzie's, which fell to be paid by his next of kin; but they would have been entitled to be reimbursed out of the estate of Mackenzie; as the widow did not lose by the active debts; so she ought not to gain by the passive debts.

Mr. Lowthian was the arbiter of his own succession, as to what should be heritable or moveable, and his heirs who succeed ex lege must take it as they find it. What is it that he has therefore done? He was bound to pay Mackenzie's debts, but he had a right of relief against his estate; he anticipates that, by taking the estate with the charge of all Mackenzie's debts, which he personally undertakes to pay in an aggregate sum, not distinguishing principal from interest. But he was relieved from this obligation by Mackenzie's estate; and he has de facto received from it wherewith to pay the debts.

The form given to this was a sale of Mackenzie's estate, at twenty-five years purchase, ultra all debts affecting it, which Mr. Lowthian undertook to pay. To Mackenzie's representatives, therefore, he was only liable for the price of the estate (£28,000) at twenty-five years' purchase, and an unliquidated amount of debts; and he was not to be discharged of his obligation till all the debts were paid. It was therefore merely a purchase of lands, for an undefined sum, which Mr. Lowthian made; and as the widow will be entitled to her terce out of the lands, it seems just that those debts which formed the price of the lands should be deducted out of the jus relictæ jus relictæ .”

I therefore move, that it be

Ordered and adjudged, that the interlocutor of the Lord Ordinary, of 5th February 1796, in so far as it finds, That in respect Mrs. Lowthian has accepted of a provision of an estate in England, that she is not entitled to claim a terce out of the lands in Scotland; and the interlocutor of the Lord Ordinary, of the 21st May 1796, in as far as it finds, That in respect it is not alleged by the defender that any other person is in possession of that estate, or competing with her for it, or that she herself is not in possession of it in terms of

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Counsel: For Appellant, Sir John Scott, M. Ross, Wm. Tait. For Respondents, W. Grant, Geo. Ferguson.