Waddell and Another v. Waddell [1818] UKHL 6_Dow_279

UKHL
Waddell and Another v. Waddell
[1818] UKHL 6_Dow_279
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1818.58 Geo. III.SCOTLAND.APPEAL FROM THE COURT OF SESSION.

No. 11

Waddell and Another Appellants v. Waddell Respondent

Mar . 9 , 1818 .SETTLEMENT. — LIFE RENTER. — DEBTS.a. A. by disposition and settlement, gives his moveable property, except the debts due to him, tob. B. the object of his particular favour; and the residue of the debts due to him, after payment of the debts due from him, to B. in life-rent and toc. C. in fee: and gives the life-rent in his lands to B. and the fee to C.; declaring that B. by acceptation of the deed, should be bound to pay the whole of his debts; manifestly conceiving that his moveable property would be much more than sufficient for payment of his debts, and intending that B. should have the liferent in the lands free. The moveable property turns out not to be sufficient to pay the debts, and action brought by the life-rentrix against the fiar for relief and sale of so much of the lands as would pay the balance, &c. and relief decreed below. But the judgment reversed Proc., the disponer, although he intended that B. should have the life-rent free, having expressly subjected B. alone to the payment of his debts, for which she became liable to the amount at least of the benefit which she derived from the deed.Disposition. May 6, 1803.This action was brought by Jean Waddell, sister of the late William Waddell, of Easter Moffatt,

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Summons.Mr. Waddell died in 1806, three years after the execution of the deed. He had, in his life-time, made considerable advances for the making and repairing the Bath-gate and Airdrie road, between Edinburgh and Glasgow; and had also come under obligations to a considerable amount to lenders of money for the purposes of that road, the expected tolls of which were then imagined to be ample security. The interest of the money advanced by him was regularly paid to the time of his death. Soon after his death it was found that the tolls were totally insufficient to defray the yearly burdens, and hence the trustees not only withheld, in future, any interest from their own body, but made large requisitions on each other for sums to pay up the principal of money borrowed. From this and other causes, the moveable funds, and debts due to Mr. Waddell, fell greatly short of the claims and demands against him: and the Respondent had no means to pay the amount of the deficit without encroaching on the annual income which she drew from the lands. The fiars having refused to agree to a sale of so much of the lands as would pay this balance, or advance the money to pay it, the Respondent brought this action against them for relief. The summons narrated the different clauses of the settlement executed by her deceased brother, and proceeded thus:—

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“That the said William Waddell having died as aforesaid, on the said first day of June, 1806, it has turned out that the personal debts due by him in consequence of cautionary and other obligations, executed prior to his death, greatly exceed the whole moveable funds and effects assigned to the Pursuer:” And it concluded— “that the Defenders should be decerned, and ordained by decreet foresaid, to free and relieve the Pursuer of the principal sums of these debts, the Pursuer being always bound to pay the legal interest from the period of Mr. Waddell's till her own decease, or to pay 5,000 l . less or more, to enable her to get relief for herself.”
Dec. 11, 1813.June 16, 1814.Dec. 22, 1814.This action came first to be tried before Lord Balmuto, Ordinary. Upon hearing counsel on the grounds of the action and defences, his Lordship appointed them to give in memorials to himself; upon advising which, his Lordship pronounced the following judgment:—this other clause, “in order the more easily to carry my intentions with regard to my moveable property into execution, I hereby empower the said Jean Waddell to sell and dispose of whatever part of my moveable property above assigned to her in life-rent, and the said George Waddell, in fee, she may think proper, and convert the same into cash; and after payment of my debts, sick-bed and funeral expences, to lend out the remainder of the money on heritable bonds, taken, payable to herself in life-rent, and the said George Waddell, in fee;” which unequivocally indicates the opinion and belief of the Testator that his personal estate was more than sufficient to pay his funeral expences and all debts that were due by him: That in no view could it be the intention of the late Mr. Waddell to burden his sister with his debts, in the event of their exceeding his moveable estate, and deprive her of the favourable situation in which he had placed her, by giving her the life-rent of his whole property: Finds it is not denied that the personal funds have fallen greatly short of the debts of the late Mr. Waddell, and therefore that the Pursuer is entitled to be relieved by the Defenders, fiars of the heritable estates, in proportion to the value of these estates, in so far as the principal sums due by the late Mr Waddell exceed his personal funds and effects; the Pursuer being always liable for the interest of such sums, from the death of the late Mr. Waddell, until the Defenders shall enter into possession, and draw the rents of the heritable property; but, before further answer, appoints the Pursuer to give in a specific condescendence of the debts due to the deceased Mr. Waddell, and of all other moveables belonging to him, which she has or might have intromitted with, and of the amount of the debts due by him which she has paid or are still resting, distinguishing the interest from the principal; and when the said condescendence is lodged, allows the Defenders to see and answer the same.”“Having considered the mutual memorials for the parties, and whole process, finds that the deceased William Waddell, of Easter Moffatt, for the love, favour, and affection which he bore to Jean Waddell, his sister, by a deed of settlement disponed and assigned to and in favour of the said Jean Waddell, in life-rent, and George and William Waddell, his nephews, in fee, his personal and heritable estate; but declaring that the said Jean Waddell, by acceptation thereof, “is bound and obliged to pay all my just and lawful debts, funeral expences, and any gifts or legacies I may think proper to leave by a writing under my hand;” That this declaration is coupled with

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—Thereafter the Appellants having given in a short representation, the Lord Ordinary thought it best, in order to save time and expense to the parties, to desire informations to be printed, that the case might be determined at once by the whole court. Upon advising these informations, the Judges of the first division of the Court of Session pronounced this interlocutor:
“Upon the report of Lord Balmuto, and having advised the informations for the parties, the Lords find and declare in terms of the Lord Ordinary's interlocutor of date 11th December, 1813; and remit to the Lord Ordinary to proceed accordingly; but find the Defenders not liable in the expenses of process.”
To this judgment the Lords adhered, by refusing a petition for the Appellants, who thereupon appealed.The grounds on which the Respondent founded her claim to relief in this case, were stated by the Respondent to be these—1st, That at the period of Mr. Waddell's death there was a very large deficit in his moveable funds; and 2dly, that the Intention of the granter was clearly expressed in this deed itself, merely to impose the debts on the Respondent, not qua life-rentrix , but qua executrix , and assignee of his moveable funds; and in fact, that the

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Point I. Intention of the defunct.Kilk. June 6, 1745; Mercer v. Scotland .I. In reference to the first of these points, it has been shown that the deed of settlement of Mr. Waddell, in so far as the Respondent was interested, consists of two parts: it conveyed, 1st, a life-rent of Mr. Waddell's heritage; and, 2dly, an assignation of his moveables, which were to be applied in the first instance in payment of all the just and lawful debts of the granter. Now, at first sight, the declaration in the deed of settlement, that the Respondent “shall be bound and obliged, as by acceptation hereof she binds and obliges herself, to pay my just and lawful debts” to pay my just and lawful debts” taken as a single and insulated clause, appears to be unqualified. But fortunately, without going beyond the deed itself , there is the most complete evidence that this obligation was merely meant to attach to the assignation of moveables, which occurs in a preceding part of the deed.

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“and in order the more easily to carry my intentions with regard to my moveable property into execution, I hereby empower the said Jean Waddell to sell and dispose of whatever part of my moveable property above assigned to her in life-rent, and the said George Waddell in “fee, she may think proper, and convert the same into cash; and after paying off my debts , sick-bed and funeral expenses, to lend out the remainder of the money on heritable bonds, taken payable to herself in life-rent, secluding the jus mariti of any husband she may marry, and to the said George Waddell in fee.”
Here, then, is the clearest evidence of the ground upon which alone the defunct took the Respondent bound to pay his debts. He appointed the debts to be paid out of the moveables. He declared so expressly in the deed. If that fund fails therefore, the means are taken away in respect of which alone , the testator laid the burden of debts on the Respondent. And here it is humbly submitted as a general rule of law and of construction, that every presumption must lie against the allegation that a granter intended to impose a heavy burden of debts upon a mere life-rent . The debts of a man are in general due to the creditors instantly upon his death; but a mere life-renter has neither money nor credit to raise a fund for the

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“ I hereby expressly burden this right and disposition , not only with the payment of my funeral charges, but also with the payment of my three sisters-german their portions yet resting by me to them; and with the payment of all the just and lawful debts that shall be resting by me at the time of my death , to whatsoever person or persons, by bond, bill, contract, decreet, or any other manner of way; and likewise with the payment of the life-rent provisions provided to Rachel Thomson my mother, and to Rachel Wilson my wife,”
with prohibition to sell or contract debt, except that it was in the power of the heirs of tailzie to sell as much as would satisfy the burdens above mentioned.Kilk. No. 4. p. 231.Fac. Coll.June 20, 1572.William Dall and Rachel Russel his wife, upon David Russel's death, were confirmed executors qua nearest of kin to him; and being pursued by the other two sisters and their husbands to account for the executry, in which, if unencumbered, these sisters had an equal interest, the Defenders made this defence, that there were more moveable debts than exhausted it. To which it was replied , that the defunct had laid the burden of his debts upon his land estate , which of course must be liable. But the Lord Ordinary, 22d December, 1744, “in respect it was not denied by the Pursuers that the

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his debts heritable and moveable.”

“A father, in a disposition of his personal estate, burdened the disponee with payment of all

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He executed afterwards an entail of his lands and estate, in which he burdened the institute and substitute with payment of all his debts heritable and moveable, empowering the heirs of. entail to sell as much of the lands as would pay the debts. Though this deed was subsequent in date to the assignation of moveables, the Court found that the disponee of the lands was not bound ultimately to sustain the debts, but that these fell to be borne by the successor, who was by law liable for such debts, viz. by the assignee of the moveables. Lord Kilkerran, after detailing the history and decision of the preceding case, explains very clearly the law applicable to such questions. “In no case,” says his Lordship, “are men so apt to be of different opinions as in those that are called questiones voluntatis , nor in the nature of things can they be brought within one rule. Meantime, as this particular questio voluntatis , whether one heir or another is intended to be ultimately liable in the debts, has generally its rise only from the conception of the burdening clause, so much may be thought to be established by the. decision in this case, and that of Russel and Dall, that no clause , however anxiously burdening the heir or disponee , is to be construed to exclude from the relief competent to him by the operation of the law , unless either the clause be such as makes the debts real burdens, or that by apt words such relief is excluded. This judgment was , upon an appeal , affirmed” affirmed” The Respondent might quote a variety of other decisions to the same effect. For instance,

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With respect to the fact of a deficit , and argument, that the abridgment of the Respondent's life-rent interest was directly contrary to the intention of the disponer, the Appellants answered—The Appellants conceive it perfectly unnecessary to examine the accuracy of the contrast, as represented by the Respondent, between Mr. Waddell's funds, as estimated by himself, at the date of the disposition, and their real disposeable amount at his death, as the whole argument founded upon it seems to them utterly inapplicable to the present question. The question is, whether or not the obligation to pay the testators whole debts is imposed upon the Respondent by his settlement; and it is clear, that the decision of that question could not be in the slightest degree affected by the establishment of the Respondent's proposition, that the testator considered the moveables, without the life-rent of the heritage, sufficient to discharge that obligation. Does it not happen every day, that a bequest is abridged, or perhaps rendered entirely unavailing by the alteration of the testator's affairs taking place between the date of the bequest and his death, and was it ever held that a court in construing the contending claims of legatees, in such cases, is entitled to disregard the intention really expressed by the

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The Appellants are just as much entitled to the benefit of these presumed intentions as the Respondent. The Respondent maintains, and the Lord Ordinary seems to hold, that because the clause directing the disposal of the moveables, after payment of the debts, shows his conviction of the sufficiency of the moveables for that purpose, it is to be inferred, that it was his intention to confer the

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In answer to the argument, that the obligation to pay the debts was meant to attach solely to the assignation of the moveables, the Appellants referred to the clause, by which it was declared, that by acceptation hereof (of the deed), the Respondent became bound to pay the debts, and to the whole of the disposition. And as to the adjudged cases quoted to show that the obligation to pay debts did not always preclude the claim of relief, the Appellants answered—Here there is no attempt to stretch the liability of the Respondent beyond that limit, because the benefits conferred on the Respondent, by the deed in question, including the life-rent, are confessedly far more than equivalent to the debts which she is bound to pay. It is necessary for her to make out, therefore, that even although the subjects conveyed are sufficient to pay the debt, the obligation to pay does not bar her claim of relief; and in support of this position, she refers to certain decisions, in particular to the cases of Russell v. Russell , and Campbell v. Campbell , Kilkerran, p. 230. 231. In the first case it was found, that where an entailer had burdened the lands entailed, with the payment of his debts, his moveable effects, which were not disposed of, remained properly liable, and that the disponee had a claim of relief against the executor.In the case of Campbell v. Campbell , a person first executed a settlement of his moveable property under the burden of the payment of his debts, and

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It must be perfectly evident that the principle of

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Another decision referred to with much confidence on the part of the Respondent is still less applicable to the point now in dispute. “David Annandale, merchant in Edinburgh, settled the life-rent of a house upon Christian Keay, his wife, in the event of her surviving him, and also executed in her favour a disposition of his moveables, expressly burdened with payment of all his debts . After his death, Keay intromitted universally with his moveables, yet so that after payment of the privileged debts due by the deceased, her super intromissions appeared not to have exceeded 2 l . sterling.” Keay married a second time, and she and her husband paid a debt of the deceased, to the amount of 50 l . but took an assignation of it to a

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Judgment.Mar. 9, 1818.Lord Eldon , (C.) In this case the question arises upon, the effect of a deed of settlement, in which there are several clauses material to be attended to with reference to the case of keay . Mr. Waddell made this settlement under an apprehension that if he gave the Respondent, his sister, all his moveables absolutely; and gave her the debts due to himself, at the time of his decease, to be converted into cash, and applied in payment of the debts due from himself, she would derive a benefit from that arrangement;

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May 6, 1803. William Waddell's disposition and settlement.This lady was the principal object of his affection; and the disposition commences with the following narrative:and authors; as also all debts and sums of money, heritable and moveable, any ways addebted, resting, or that shall be owing to me at the time of my death.”
“Know all men by these presents, that I, William Waddell, Esq. of Easter Moffat, heritable proprietor of the lands and others after mentioned, for the love, favour, and affection that I have and bear to Jean Waddell (my youngest sister), George Waddell, of Ballochnie, and William Waddell, his brother (my nephews), and for other good causes and considerations, me hereunto moving, have disponed, assigned, conveyed and made over, as I do by these presents, but with and under the burdens, provisions, conditions, power, and faculty under written, give, grant, assign, and dispone from me my heirs and successors, to and in favour of the said Jean Waddell, in life-rent, all lands and heritages presently belonging or which shall belong to me at the time of my death, with the whole writs and evidents thereof, conceived in favour of me or my predecessors,

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And I apprehend the effect of that, coupled with a clause in the concluding part of the deed, was to give a life-rent only in these debts to Jean Waddell. And then he says:
“And further, give, grant, assign, and dispone to and in favour of the said Jean Waddell, her heirs, executors, successors, and assignees, all the corns, cattle, horse, nolt, sheep, &c. and in general, any other moveable subject pertaining or belonging to me, wherever the same may be.”
The distinction then being that of his moveable property, all the debts and sums of money due to him were given to her in liferent, and the rest absolutely.Then he proceeds, “And particularly without prejudice to the said generality, I hereby, with and under the burdens, provisions, condition, power, and faculty under written, give, grant, and dispone from me and my foresaids, to and in favour of the said Jean Waddell in life-rent, and the said George Waddell and his heirs in fee, all and whole the respective lands and others after mentioned, viz.” (Then follows a full description of the subjects destined to the Appellant, George Waddell.) “And further, I hereby give, grant, and dispone from me and my foresaids, to and in favour of the said Jean Waddell, in life-rent, and the said William Waddell, and his heirs in fee, all and whole the Forty Shilling Land of Easter Moffat, &c.” (Then follows a particular

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“ But declaring always that the said Jean “Waddell shall be bound and obliged But declaring always that the said Jean “Waddell shall be bound and obliged , as, by acceptation hereof , she binds and obliges herself to pay all my just, and lawful debts , with my funeral charges and expences, and any gifts or legacies I may think proper to leave by a writing under my hand.”
Thus then the deed, after describing the lands, and disponing the fee to his nephews, takes up the subject of his debts, which he lays upon her only. Now if there had been nothing more in the deed, it would be quite impossible to say that she was not liable for the whole of the debts, and that if he miscalculated, she would not be so far disappointed of what he meant to give her; as there is not a word to show that he had it in contemplation that the lands should be liable to pay any of the debts. Then he proceeds, “and I appoint the said Jean Waddell, to make payment to Christian Waddell, my sister, spouse of James Muir of Gilgarth, during the said Christian Waddell's life, a yearly annuity of 20 l . sterling per annum , and that at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment thereof at the first term of Whitsunday or Martinmas after my death, and so on termly thereafter during her life-time.” That stands on the same ground as the bequest to the Respondent, and is open to the same answer. If he miscalculated, and the life-rent failed, so would

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And further, I leave the sum of 700 l . sterling to Margaret Waddell, my niece, daughter of the deceased George Waddell, of Ballochnie; which sum of 700 l , sterling, the said George Waddell, her brother, or those who may succeed to the fee of the lands above disponed to him, shall be bound and obliged, as, by acceptation hereof , they bind and oblige themselves, to make payment to the said Margaret Waddell, at the first term of Whit Sunday or Martinmas after the death of the said

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“And further, I hereby assign, and make over to the said George Waddell in fee, all debts and sums of money heritable and moveable, any ways addebted, resting, or that shall be owing to me at the time of my death. And in order the more easily to carry my intentions with regard to my moveable property into execution, I hereby empower the said Jean Waddell, to sell and dispose of whatever part of my moveable property, above assigned to her in life-rent, and the said George Waddell in fee, she may think proper, and convert the same into cash, and after paying off my debts, sick-bed, and funeral expenses, to lend out the remainder of the money on heritable bonds, taken payable to herself in life-rent, secluding the jus mariti of any person she may marry, and the

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But after all, where the personal property is made liable to the payment of debts, and the residue is given to one, and the lands to another, and there is no residue, the objects of testators are defeated every day. He seems to have thought that there would be enough to pay his debts. But suppose 10,000 l . due to him, and 5,000 l . to pay, and that the 10,000 l . or 5,000 l . of it, had been lost by insolvency or otherwise, the object of his bounty would be defeated. Then the utmost that can be said is, that he called upon her to take, but subject to a burthen, what, he conceived, would be a benefit. But he mistakes: and so mistaking and miscalculating, his object has miscarried. I therefore think that the opinion of the two Judges, against that of the three, is the better opinion; and that this judgment should be reversed, and the Defenders assoilzied, without prejudice to any claim which she may have against the Appellants, in case the interest she has under the deed should fall short of the burthens imposed upon her.(Sir Samuel Romilly , in answer to a question from the Lord Chancellor, stated that they did not mean then to press the point of her being personally liable after her interest should be exhausted.)

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Judgment reversed , without prejudice to any claim against the Defenders, in case the interest she derived under the disposition stated should fall short of the debts paid, or to be paid, by the Pursuer.