Mrs Elizabeth Stewart or Richardson - Kea - Murray v. Mrs Christian Stewart or Hay, and Mrs Charlotte Stewart or Alston - Walke - Tait [1824] UKHL 2_Shaw_149

UKHL
Mrs Elizabeth Stewart or Richardson - Kea - Murray v. Mrs Christian Stewart or Hay, and Mrs Charlotte Stewart or Alston - Walke - Tait
[1824] UKHL 2_Shaw_149
A party having, by an antenuptial contract of marriage, disponed his estate to the heir-male of the marriage, “and to the heirs and assignees whatsoever of the said heir-male, in fee;” whom failing, the heir-male of any subsequent marriage, and the heirs of his body; whom failing, to the heir-female, or eldest daughter of the marriage, and who should always succeed without division; and a son of the marriage having existed, but died without issue, leaving three sisters;—Held, (affirming the decision of the Court of Session), That the three sisters had right to the estate, as heirs-portioners of their brother, and not the eldest without division.On the 10th of February 1766, James Stewart of Urrard, in the county of Perth, on his marriage with Miss Elizabeth Robertson of Tullybelton, entered into a marriage-contract, whereby he provided and disponed “to and in favours of himself and the said Elizabeth Robertson, his promised spouse, and the longest liver of them two, in conjunct fee and liferent, with the said Elizabeth Robertson, in case she survive him, her liferent use and possession, during all the days of her lifetime, of an annuity of L.1000 Scots money, free of all public burdens, to be paid to her yearly out of the first, best, and readiest of the rents, mauls, and duties of the lands and others underwritten, in manner and at the terms after-mentioned; and the said whole lands and others underwritten, to the heirs-male to be procreate betwixt the said James Stewart and Elizabeth Robertson, of this intended marriage, and to the heirs and assignees whatsoever of the said heir-male

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Of this marriage there were four sons and four daughters. Mr Stewart died in 1781, and was survived by his wife; so that the contemplated event of a second marriage did not occur. He was succeeded by his eldest son John, who, from his infancy, was in a state of mental imbecility. His younger brothers, and one of his sisters, predeceased him, without issue, and he died also without issue, in September 1818. On this event, a competition arose between his three surviving sisters for the estate;—the eldest, Mrs Elizabeth Stewart, wife of James Richardson, Esq. of Pitfour, contending that she was entitled to succeed, under the destination of the contract of marriage, without division; while her two younger sisters, Mrs Christian, wife of James Hay, Esq. of Seggieden, and Mrs Charlotte, wife of James Alston, Esq. maintained, that they were entitled, as heirs of their brother, to succeed along with her, in the character of heirs-portioners. Each of the parties having taken out brieves to be served in the characters claimed by them, and the question having been discussed before the Macers, where Lords Pitmilly and Cringletie officiated as assessors, it was reported to the Second Division, on informations.

On the part of the two younger sisters it was contended,—

1. That as the lands were destined “to the heirs-male to be procreated betwixt the said James Stewart and Elizabeth Robertson

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2. That although the term ‘heirs whatsoever’ had a certain extent of flexibility, so as to point out different heirs under different circumstances, (as, for example, the heir of conquest or heirs-portioners), yet they had not an universal flexibility: that although it was true that the intention of a party was to be given effect to, yet the rule of law was, that that intention was to be explained according to the technical interpretation of the words which he had used, unless there was complete demonstrative evidence that he had made use of them in a sense different from that fixed upon them by law; but that in the present case there was no such evidence, and, on the contrary, it rather appeared that it had been the intention of the contracting parties, that, in the event of the existence of an heir-male, the estate should vest in him and his heirs whatsoever, in preference to the heirs of any other marriage, or the other substitutes.

On the other hand, it was maintained by the eldest sister,—

1. That at this was as unfettered destination, there could be no doubt that the heir-male of the marriage, who existed, and made up titles, had power to dispose of the estate at his own pleasure; but that it was equally clear, that if he executed no deed, disposing of the estate otherwise, the destination of the contract must receive full effect, according to its terms, though still as a simple and unfettered substitution: that it was evidently destination containing various substitutions of heirs, called

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2. That supposing the above proposition were not well founded, still there was an express clause in the deed, providing that the eldest daughter was “always to succeed without division.”The Court, after a hearing in presence, “remitted to the Macers, with instructions to proceed in the service of the three sisters of John Stewart as heirs-portioners and of provision to the estate of Urrard;” and to this interlocutor they adhered on the 5th of July 1821. *

Footnote

* See 1. Shaw and Ball. No. 131. and Fac. Coll. where it is said, that “the Judges were not unanimous. Lord Glenlee held, that the proper signification of the term heirs whatsoever was controlled by the subsequent branches of the destination, and the clause of provisions to the younger children, since there seemed a manifest absurdity in supposing a distinction intended to be made, in reference to the order of succession of the postponed heirs, between the case of the existence and non-existence of an heir-male of the intended marriage. But the Lords Justice-Clerk, Bannalyne , and Craigie , without feeling it necessary for the decision of the cause to determine the question whether the daughters of the marriage were specially called as substitutes or conditional institutes, concurred in opinion that the contract, viewed in all its parts, did not entitle the Court to ascribe an intention to the parties which is contradicted by the technical acceptation of the leading and most material branch of the destination.”

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The eldest sister having appealed, the House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed.”Lord Gifford. —In the case in which Mrs Elizabeth Stewart, wife of James Richardson, Esq. of Pitfour, and the said James Richardson, are appellants, and Mrs Elizabeth Craigie Stewart, wife of James Hay, Esq. and Mrs Stewart, wife of James Alston, Esq. and the said James Hay and James Alston, for their interests, are respondents, which was heard at your Lordships' Bar in the course of the last week, I wish, before making any motion to your Lordships as to the decision to which your Lordships should arrive in this case, to state to your Lordships what has occurred to me in this, which is undoubtedly a case of very considerable importance in the law of Scotland.My Lords,—It appears that the appellant took out a brieve, claiming to be served the only heir of provision under the marriage-contract of her father. The respondents upon this took out a brieve for a general service as heirs-portioners, and, as such, heirs of provision under that contract. This case coming on in the Macers' Court, the parties were heard by their counsel, and the debate in the competition was ordered to be stated in informations, to be reported to the Second Division of the Court of Session. The case was accordingly so stated, and on its coming on before that Division, the Lords of the Second Division, on the 13th May 1820, pronounced this interlocutor:—
“The Lords having advised the mutual informations for the parties, with the contract of marriage referred to, remit to the Macers, with instructions to proceed in the service of the three sisters of John Stewart as heirs-portioners and of provision to the estate of Urrard.”
By that decision, Mrs Christian Craigie Stewart, and Mrs Charlotte Stewart, were held entitled to be served as heirs (conjunctly with the appellant) of John Stewart, as heirs-portioners and of provision under the marriage-contract. Against this interlocutor the appellant presented a reclaiming petition, which was answered by the respondents; and on that the Lords of Session pronounced a second interlocutor, adhering to the decision which had been pronounced.The question in this case arises on the construction of the marriage-contract entered into by Mr James Stewart of Urrard, in the county of Perth, with a lady of the name of Elizabeth Robertson, dated on the 10th February 1769; and I will shortly state to your Lordships the terms of that contract in contemplation of marriage on which the question arises. (His Lordship then read the clause. See p. 149.)In a further part of this deed provision is made for an obligation to infeft, and a procuratory of resignation in certain events. Then it proceeds, ‘Like as if a son,’ &c. See p. 150.After the execution of this contract, the terms of which I have stated to your Lordships, this marriage took effect, and Mr Stewart the

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The question arises on the construction to be applied to the destinations, as they are called, in this instrument. It is admitted on all hands, that, prima facie, and according to the technical meaning of the terms used in the first destination of this marriage-contract, the respondents are entitled, because the words ‘heirs and assignees,’ or ‘heirs whatsomever,’ describe the heirs of line, which character these ladies, in conjunction with the appellant, take; but then it has been contended, that although this is, prima facie, the technical meaning of this destination, that meaning may be restricted by the context, or other parts of this instrument, if it can be clearly shewn that this party intended to use those terms in a more restricted and limited sense; and undoubtedly, my Lords, I apprehend that is a correct statement of the law of Scotland with respect to the construction of instruments; and in this sense it is that the word ‘heirs’ or the words ‘heirs-male,’ are terms which in this case, and in other cases, have been by your Lordships treated as flexible terms;—that is, that they have a meaning which is to be applied to them, provided there is nothing in the case to shew that they were meant in a restricted sense; but if so, then, although such be their general meaning, they must be limited and restrained, and therefore the terms used in this case, and in others, have been considered to be flexible. It is also admitted by the learned persons, all of whom pronounced opinions upon this case in the Court below, that although such be the law, you are undoubtedly not to restrain the meaning of terms of this nature by mere conjecture, or upon a notion that, without restraining them, you cannot carry that into effect which you may conjecture would have been the meaning of the party, if he could have foreseen the events which have happened,—the events which raise the question as to the construction of this instrument. And, my Lords, I cannot, I think, state to your Lordships so applicably, or more applicably, what the law of Scotland is, as decided in their Courts, but still more as decided by your Lordships, than by referring your Lordships to what is stated by a noble and learned Lord, the present Lord Chancellor, in the great Roxburghe case, in a most luminous judgment pronounced by him upon that occasion. My Lords, he states the result of the law as laid down in

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Now, my Lords, that being the law, I will once more call your Lordships' attention to the language of this instrument. The first destination is “to the heirs-male to be procreate betwixt Mr Stewart and his wife, and to the heirs and assignees whatsoever of the said heir-male in fee.” If it had stopped here, there would have been no question; because undoubtedly the result of that destination would be, that the eldest son of that marriage, John Stewart, would take; and he dying, the estate would descend to those persons who were heirs of line of that gentleman under the destination. The deed then goes on, ‘whom failing,’—and, my Lords, I shall, in the course of the observations I shall address to your Lordships, have something to observe on the meaning of those words,—“whom failing, to the heir-male or son to be procreate of the body of the said James Stewart of any subsequent marriage, and the heirs of his body;” so, that in this destination he no longer mentions the “heirs and assignees whatsoever,” which had occurred in the first destination, but he here confines the destination to the heir-male or son of the second marriage, and the heirs of his body, “whom failing, or if the said heir-male to be procreate of the body of the said James Stewart of a subsequent marriage shall exist, and afterwards fail by death before he is either married or attains to the age of 21 years complete, to the heir-female or eldest daughter to be procreate of the intended marriage, and the heirs of her body,”—here again he uses the words ‘heirs of the body,’—“without division; whom failing, to the next eldest daughter of the intended marriage, and the heirs of her body; and so on successively while any daughter of the intended marriages exists.”I stop here for a moment—not that it is very material in the consideration of the present question—to remark to your Lordships, that undoubtedly the word ‘marriages’ occurs in the plural number. I cannot help thinking, however, that this is a slip, that the letter s got

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Now, my Lords, I say, when the party has used two distinct sets of terms, one as applied to one set of individuals, and another occurring in almost the next succeeding sentence, as they do in this instrument, it requires, I think, very strong expressions in other parts of the instrument to satisfy any Court, that when he used two. distinct expressions, he meant one and the same set of persons; that when he used the words in the first part, “to the heirs-male” of that marriage, and to the heirs and assignees whatsoever of the said heir-male in fee, he meant heirs of his body, though in the very next destination, when he is contemplating the possibility of a son of a second marriage, he applies different terms, namely, “heirs of the body;” shewing in that case he did not mean that heirs-male or heirs of line of that marriage should succeed, but only the issue or heirs of his body.My Lords,—I find nothing decisive in the other parts of this instrument, though undoubtedly a great deal of ingenuity has been used, yet it does not appear to me, on an attentive consideration of these provisions, that they at all shew that which has been insisted for. If I were to conjecture, I might perhaps say, if this gentleman had been asked, in the event which has happened, do you mean that this estate should go to all your daughters, or only to your eldest daughter? perhaps I might have had a difficulty in making up my mind what would have been his intention, if he could have foreseen the event, but we can only collect his intention from the terms he has used. Now he undoubtedly contemplates, first, that a son may come into being of the first marriage, who may succeed to this estate; in that case he makes portions for his younger children. He then contemplates that,

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My Lords,—If I am right in this view of the case, I say there is nothing in this instrument from whence you can collect, in the language of my Lord Chancellor in the Roxburghe case, that the author of the deed did not intend that that which is the prima facie and obvious, meaning of this term should not be applied to it in the event that has happened. A son of that marriage came into existence;. he lived (unfortunately in a state of mental incapacity) and then died; and the question is, whether these ladies have not the right to say under this instrument, that, having existed, and having therefore become entitled to this property under this destination, the father being dead, they have now a right as heirs-portioners of that gentleman, in conjunction with the appellant, to claim possession of the estate? and your Lordships will see that there is this inconsistency arising from this construction contended for. on the part of the appellant,—the portions are provided for the daughters of the first marriage in case of a son coming into existence and succeeding to the estate; these ladies are clearly entitled in, such case to those portions: there is also a provision, that if the eldest daughter shall come into possession of the estate, the younger daughters shall have portions. The construction, therefore, put upon this deed on the part of the appellant is this, that these ladies would be entitled to portions in consequence of the first event contemplated, and would also be entitled to other portions if the appellant succeeded to the estate, which, as it appears to me, is inconsistent with the intention of Mr Stewart the author of this deed. He contemplated an event, by which the estate would belong to one of his children, namely, the eldest son of the first marriage, and in that case he provided portions for the daughters; and I think it is clear that, in this case, the daughters would not succeed to the estate under the destinations of this deed, but would be entitled to the portions; whereas, if the construction contended for on the part of the appellant be a true one, they would be, as I have stated to your Lordships, entitled to two portions.Then it is said, that he clearly meant to prefer the son of a second marriage to the daughter of the first, and that that intention would be frustrated by the construction sought to be put on the part of the respondents. My Lords, there was a little difficulty in that mode of arguing; for I observe in the papers in the Court below, (nor have they entirely abandoned it in the appeal case before your Lordships), that the construction sought to be put upon these words ‘heirs whatsoever’ is, that they were not quite so extensive as had been contended for. It is said, he evidently meant to prefer the male line; but your Lordships will see, that the destination to the eldest son and heir-male of the second marriage, is to the heirs of his body,

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But then it is said, if the words ‘heirs and assignees whatsoever’cannot be construed in the way contended for, still, as in this clause of the instrument, the eldest daughter existing is always to take without division; and as a case has occurred in which those daughters are claiming the estate, the eldest daughter must, by virtue of that provision, take the estate alone, and not with her sisters. My Lords, the succession to the estate must be in the lines which have been provided. If she had succeeded through those lines, then you would have the case for which she contends; but those words apply only to a succession of the daughters under this instrument. Now, here they claim as heirs of provision under this marriage settlement; but how do they claim? in the character of heirs whatsoever of their brother, and in the character as heirs of provision under the marriage settlement; but they do not claim it, if I may use the expression, under the original provision to daughters under the settlement, but as heirs-at-law to the son, and, as such heirs-at-law of the son, now entitled to the estate.My Lords,—Such are the views I have taken of this case; but I cannot conclude these observations without adverting to topics which have been very forcibly urged at your Lordships' Bar in this case, as well as in others, namely, the danger to the law of Scotland from a decision such as I ask your Lordships to pronounce. In this case the decision of the Court below, proceeding upon the principle I have stated to your Lordships, and professing to adhere most strictly to the law as laid down in the judgment of this House, but expounded at large by the Lord Chancellor in his able and most elaborate judgment in the Roxburghe case;—I say, professing to be guided by those principles, the Court below have decided, that the obvious and technical construction of those words in this case must prevail; because they are unable to discover from the rest of the instrument that it was the intention of the author of the deed, in the events which have happened, to restrict the meaning of those terms: and I observe one of the learned Judges has stated the principle in the same way. It only shews how difficult it is for different minds to apply the same principle to

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My Lords,—Adhering to those principles, applying them to this undoubtedly imperfectly and ill-drawn instrument, yet anxiously applying those principles to this case, I, for one, have not been able to discover in the whole of this instrument sufficient to entitle me to say that there is that ‘declaration plain,’ that necessary implication, to shew that the author of this deed meant by these terms, ‘heirs and assignees

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Appellant's Authorities .— 2. Mack. p. 325.; Kilk. 463.; 3. Ersk. 8. 48. and 35.; Kilk. 190.; Buchanan's Trustee, March 4. 1813, (F. C.); Harvie, Dec. 12. 1811, (F. C.); Begg, Jan. 14. 1663, (4251.); Gordon, Feb. 19. and March 4. 1685, (14,849.); Schaw, Nov. 10. 1687, (14,850.); Laws, Jan. 19.1697, (14,850.); Dickson, Feb. 23. 1697, (14,851.); Stephenson, June 24. 1784, (14,872.); Lord Eldonin Roxburghe cause; M. of Clydesdale, Dec. 16. 1725, (1262.); Kerr, June 23. 1807, (F. C); Tinnoch, Nov. 26. 1817, (F. C.) Respondent's Authorities .— 3. Mantica, 4.; Baillie, March 26. 1770, (F. C); Campbell, Nov. 28. 1770, (14,949.); Hay, July 24. 1788, (2315.); Sutties, Jan. 15. 1809, (F. C.); 2. Diet. 369.; Ballantyne, 1687, (3002.)Solicitors: J. Chalmer— Spottiswoode and Robertson,—Solicitors.

(Ap. Ca. No . 29. )