John Crichton, Esq. and . Dean of Fac. Moncreif - Sugde - Whigham v. Elizabeth Grierson and Others and . Brougha - Fullerto - Keay [1828] UKHL 3_WS_329

UKHL
John Crichton, Esq. and . Dean of Fac. Moncreif - Sugde - Whigham v. Elizabeth Grierson and Others and . Brougha - Fullerto - Keay
[1828] UKHL 3_WS_329 · 1821-11-12
Held, 1. (affirming the judgment of the Court of Session), in a question with the next of kin, that a mortis causa conveyance to trustees was valid, whereby a testator declared, “That it is my wish that such remaining means and estate shall be applied in such charitable purposes, and in bequests to such of my friends and relations as may be pointed out by my said dearly beloved wife, with the approbation of the majority of my said trustees;” and, 2. That one of the next of kin having been named, and having accepted, and taken benefit under the deed, was not barred from claiming the residue, as belonging to him and the other next of kin.James Crichton , a Scotchman, went early in life to India, where he acquired a large fortune, and returned in 1806 to his native country, and purchased extensive landed properties in Dumfries-shire. He married Elizabeth, daughter of Sir Robert Grierson, baronet, and, by contract of marriage, provided her in an annuity of L.400 per annum, in case she should survive him. He had no children, but had a brother, John, and sister in Scotland. He had some distant relations in Scotland, and several cousins in America.On 12th November 1821 he executed a trust-deed and settlement in favour of his wife, so long as she should remain a widow, and of four other trustees, (among whom was his brother John), or a majority of them, “who shall accept or act, or survivor of them, and who are hereby declared a quorum, and to such person or persons who shall be assumed as trustees as hereafter specified; and that in trust always, for the uses, ends, and purposes herein after specified, and contained in any instructions

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He died on the 3d May 1823, without having executed any instrument of instructions, so far as could be discovered, or made any other disposition of the residue of his personal estate, said to amount to L.100,000. The trustees accepted by the following minute:—
“We, the undersigned, do hereby declare our acceptance of the trust reposed in us by the deceased James Crichton, Esq. of Friars-Carse, conform to his deed of settlement, of date 12th November 1821, and two several codicils annexed thereto, and shall execute the same to the best of our abilities.”
This minute John Crichton signed, along with the other trustees; and it was alleged that he also took a conveyance to the heritage provided to him by the settlement, and concurred in a proposal made by Mrs Crichton, that Mr Manners, one of the trustees, should receive a sum as a friend in consequence of his giving up acting as factor.Thereafter John Crichton took the opinion of Counsel as to the validity of his brother's settlement, and laid it before the trustees, intimating that his acceptance of, and acting under the

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The trustees stated in defence,—

1. That the pursuer had homologated and approved of the deed challenged, by acting under it as trustee, and claiming the subjects provided to him.2.That the expressions of the codicil were sufficiently clear and explicit, and amounted to a definite and precise exposition of the legal will of the deceased; and referred to the case of Hill v. Hood or Burns , which was then depending before the Inner-House. The Lord Ordinary, “in respect that a case, Hill v. Hood's trustees , * which is said to be similar to the present, is

Footnote

* 3. Shaw and Dunlop, No. 283.; and 2. Wilson and Shaw's Appeal Cases, p. 80.

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Both parties appealed,—the pursuer on the merits, and the defenders as to homologation.‡ Appellant , (Pursuer) .—1. Every individual capable of disposing of his property, has a right to do with it as he thinks proper; but as the will is an act of the mind, it must be clearly and explicitly expressed; and if the deed in which it is embodied excludes the natural heirs, the law will jealously inquire if that expression has been distinct, both as to the subjects bequeathed and the legal disponees. Here the conveyance is to trustees. They are therefore bound to execute the specific instructions in the conveyance; and where there are no instructions, the trustees hold for the nearest of kin of the deceased. But the deceased has not effectually exercised the power reserved by him, of making a distribution of his means and estate, and this lets in the appellant and his sister to the right to the unapplied residue. No doubt, the trustees say, that the deceased has delegated to them the power of distribution, and that such delegation is legal and

Footnote

* After the pursuer's Counsel had been in part heard, it was suggested that the defence of homologation should be first disposed of; and accordingly the Court took that point into consideration, and (24th February 1826) unanimously repelled that objection to the pursuer's title to insist in the action.† See 4. Shaw and Dunlop, No. 364. where the opinions of the Judges are given.‡ When the Counsel were called upon, Mr Sugden, as King's Counsel, proceeded to open the case for the appellant, whereupon Sir James Moncreiff, Dean of the Faculty of Advocates in Scotland, interrupted him, and stated to their Lordships, that though, from the circumstance of this case involving certain principles of law to which his learned friend had devoted particular attention, he had, in justice to their client, consented that Mr Sugden should lead, he begged their Lordships nevertheless to understand, that, as Dean of Faculty, he protested that, at the Bar of their Lordships' House, he had a right to take precedence of any King's Counsel.Mr Sugden, in reply, said, that as one of the King's Counsel he claimed a right to lead the Dean of Faculty, and therefore he could not admit that his doing so now was to be considered as any act of favour or courtesy.The Lord Chancellor said, the House would understand that the course followed in the present case would not be considered as any precedent, and that both the Counsel who had addressed their Lordships on this point had preserved their rights and privileges entire by their mutual protests.

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2. There is not the slightest ground for imputing to the appellant homologation as a bar to the action. He does not challenge the deed. He only inquires into what are its legal effects. And if any part is void from uncertainty, it is the same as if that part were non scriptum, and his right admitted as a matter of course.1. Respondents .—The will and codicil involves no uncertainty regarding the testator's intention; on the contrary, he gives clear and distinct directions how the residue of his property is to be applied. This is not, therefore, a case of dubiety as to the meaning of the testator, which, when leaving an inextricable degree of uncertainty, may avoid a will; but a question, whether the explicit expression of intention is entitled to legal effect against the testator's heirs-at-law. Of this, however, there can be no serious room to doubt. The intention as expressed is perfectly consistent with the powers of a testator, as recognized in the law of Scotland, and must therefore receive effect. It is not essential to the validity of a will that there be an actual specification, either of the individual legatees, or of the particular charities which are to be benefited. There is no known rule of law by which a testament must contain such an appropriation as to confer, on the death of the testator, a jus actionis on one or more individuals, under the penalty of being held void for uncertainty. On the contrary, he may leave legacies absolutely, conditionally, or hypothetically; and there may, or may not, be an individual holding a jus actionis, or any patrimonial interest founding a title to insist for performance. All that can be objected in the present instance is, that, for the time, the effect of the legacy is suspended; but the instant the trustees make the election, then the interest vests, and the description is completed. The trustees are not here making a will, but carrying into execution the will made by the deceased. Besides imposing on them the ordinary duties of trustees, the testator empowered them to select, within a certain range of description pointed out by him to them, the particular persons and objects to be favoured; and the exercise of such a faculty was competent to the testator. The right of posthumous disposal is one of the rights attached to property, and

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2. But, independent of these views, the appellant homologated the deed. It is no answer that he is not setting aside the deed, but only ascertaining its efficacy, and that, in inquiring whether it is void from uncertainty on one part, he does not repudiate it in others; for truly he is substantially challenging the deed; and even if this was a question of avoidance in respect of uncertainty, the appellant might, by homologation, bar himself from resting on that ground, as he could from any other.The House of Lords “ordered and adjudged, that the judgments complained of be affirmed.”Lord Chancellor .—My Lords, In this case, in which Crichton is appellant, and Grierson and others are respondents, I will trouble your Lordships for a few minutes, while I suggest what I think ought to be the judgment.My Lords,—This case arises out of a disposition of property made by a person of the name of James Crichton. James Crichton, early in life, went to the East Indies, where he accumulated a considerable fortune, and in the year 1806 returned to Scotland. In the year 1821, having, I believe, resided in Scotland during the whole of the interval, he made that disposition and settlement of his property which is the subject of the present suit. By that disposition and settlement he settled his property upon his wife during her widowhood, and upon

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“And in regard I have not yet determined in what way and manner the farther distribution of my means and estate shall take place, I hereby reserve to myself power and liberty to make such distribution at any time preceding my death, either in holograph instructions to my said trustees, to be executed informally without the usual solemnities, or by a formal deed of instructions relative hereto.”
This instrument was dated, I think, on the 11th of November in the year 1821.

Upon the 20th of the same month, he executed a codicil in these terms:—

“I hereby declare, that in the event of my failing to make a distribution of my means and estate which shall remain after fulfilling the purposes before specified, either by holograph instructions, though not formally executed, or by a formal deed of instructions, which I reserve to myself full power to do, then it is my wish that such remaining means and estate shall be applied to such charitable purposes, and in bequests to such of my friends and relations, as may be pointed out by my said dearly beloved wife, with the approbation of a majority of my said trustees; and in the event of her decease, or entering into a second marriage, before such application shall have been pointed out and approved of as aforesaid, then I hereby empower the majority of my said remaining trustees to make the application in the way and manner they would conceive to be most agreeable to my wishes if in life.”
About a year, or a year and a half afterwards, he made a further codicil, in which he disposed of a farther part of his estate, and I believe a third codicil, at a subsequent period; but it does not appear to me necessary to advert to the dispositions in these two codicils. I do not think that they at all bear upon or affect the present question. The question turns entirely on the construction and validity of the clause to which I have called your Lordships' attention, and which is in these terms; if he makes no farther disposition:—
“It is my wish that such remaining means and estate shall be applied in such charitable purposes, and in bequests to such of my friends and relations, as may be pointed out by my said dearly beloved wife, with the approbation of a majority of my said trustees; and in the event of her decease, or entering into a second marriage, before such application shall have been pointed out and approved of as aforesaid, then I hereby empower the majority of my said remaining trustees to make the application in the way and manner they would conceive to be most agreeable to my wishes if in life.”

The first point to which I will call your Lordships' attention is the

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My Lords,—I apprehend that, according to the authorities in the law of Scotland, it is quite clear a party has this power; and I shall take the liberty of referring your Lordships to some of the authorities and cases upon this point, which have been cited at the Bar, and relied upon; and your Lordships will find that the current of authorities, I may say the whole current of authorities, tends to establish the affirmative of the position to which I have adverted, and to shew that the disponer of property in Scotland has the power of appropriating and disposing of his property in the manner I have pointed out.My Lords,—The first case to which I shall refer, (because it is the earliest in point of date), is the case of Murray against Fleming, which was decided, I think, so far back as the year 1729. It is in these terms:—
“A husband disponed his land estate to his wife in liferent, and to any of his blood relations she should think most fit, to be nominated by a writ under her hand, in fee.”
Your Lordships find that the Court of Session decided, “that this disposition granted by the husband to his wife did sufficiently enable her to nominate persons to succeed to the subjects disponed; and that she having accordingly exercised that power, the persons named by her have right to succeed.” That, certainly, upon the first impression, is a strong case for the purpose of establishing the position to which I am adverting; but much ingenuity, and much talent, was exercised at the Bar, as was done throughout every part of the case, by the learned Counsel who appeared on the part of the appellant, and, with reference to the particular authority to which I have referred, great pains were taken, by looking into the original papers and proceedings in the cause, and adverting to the arguments of Counsel as detailed in those papers, to shew that the judgment of the Court was founded upon the consideration, that the wife had a constructive fee. Now, my Lords, I do not mean to say that it is impossible or even improbable that that should be the foundation upon which the Court proceeded; but still I find, that Lord Bankton, (who is a very competent authority), in his work, to which reference has been made in the course of the argument adverting to this case, and adopting its authority, does not put it upon that ground, or consider that the Court decided it upon that ground, but he represents it as decided simply on the ground of authority for the object in question being granted to the wife; and my Lord Kames, following Lord Bankton, in his valuable work on the Principles of Equity, considers the case as having proceeded upon the same ground.But, my Lords, the point of law does not rest upon the authority of this case alone. The next case in point of time was the case of Brown against his relations. The disposition, my Lords, was in these terms:—bequeathed by me at any time of my life in manner foresaid, and of the payment of the expenses of executing this trust, to be divided amongst my poorest friends and relations whom I may have forgot herein, or in any other deed to be made by me in relation hereto, at any time during my life.”
“And the remainder of the proceeds of my said means and estate, after payment of the several legacies already bequeathed, or to be

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So that it was to be divided among his poorest friends and relations whom he had forgotten in that deed, or whom he might forget in any one of a similar description he might afterwards make. Now, my Lords, the judgment of the Court was in these terms:—
“The Lords find, that by the trust-disposition executed by the deceased John Brown, his trustees are vested with a discretionary power to divide, amongst the poorest friends and relations of the said John Brown, the remainder of his estate, after payment of his debts and legacies, and the expenses of executing the trust, and that without distinction, whether the said relations are connected by the father's or by the mother's side, and also without distinction of degree:”
so that your Lordships find in that case it was considered, that a discretionary power was, according to the terms of the disposition, vested in the trustees, to divide that portion of the property among the relations of the disponer, both on the father's and the mother's side.My Lords,— A third case, to which I may also refer, for the purpose of establishing the same principle, is that of Snodgrass against Buchanan. That case was of this description; the dispositive clause was in these terms:—
“Therefore, for love and other causes, I do hereby assign, dispone, and make over from me, to and in favour of the said Captain Alexander Buchanan, and the heirs of his body, or his assigns; whom failing, to such of my mother's relations as my kind and respected friend, Mrs Margaret Buchanan, widow of Dugal Buchanan, Esq. of Craigicvairn, shall appoint by a writing under her hand; which failing,” &c.
My Lords,I consider that as another authority tending to establish the same position. The argument that was urged at the Bar was, that in that case the question was not raised; but, my Lords, I consider that a strong circumstance tending to establish the position; for the cases to which I have referred had previously occurred. One was decided so far back as the year 1729, the other was decided at a subsequent period, both of them long anterior to the case to which I have referred; and when I advert a little to the manner in which the case to which I am now drawing your Lordships' attention, was contested by the activity and talent of Counsel, the circumstance of the point not having been raised in that case, can be explained only from a thorough conviction of all professional gentlemen at the time practising in Scotland, that the point was too clear for argument; therefore I consider, that, though the question was not raised in that case, the circumstances connected with the case tend strongly to confirm the position to which I have already called your Lordships' attention.

My Lords,—Another case was that of a disposition made by a person

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My Lords,—The case to which I have referred, in which the case of Alexander Horn was cited, was a case of Hill against Hood's trustees: that was a case, in the first instance, decided by the First Division of the Court of Session, and afterwards came before your Lordships' House; and the material part, the disposition of the party, was in these terms:—She appointed the residue of her estate to be applied by her trustees, and their foresaids, in aid of the institutions for charitable and benevolent purposes established, or to be established, in the city of Glasgow and its neighbourhood; and that in such way and manner, and in such proportions to the principal, the capital, or the interest or annual proceeds of the sums so to be appropriated, as to the trustees should seem proper; declaring, as she thereby expressly provided and declared, that they should be the sole judges of the appropriation of the residue for the purposes aforesaid. That case, my Lords, rested on the same principle, and was opposed on the grounds applied to the case now before your Lordships. Your Lordships were of opinion, upon the consideration of that case, that the decision of the Judges in the Court below was correct and proper; and their judgment was affirmed. I refer to that judgment, of which I have a report now lying before me of the speech delivered by the late Lord Gifford; and it is important in point of authority, for it is a case not standing by itself; for when that case had been argued at the Bar, and judgment was given, the noble and learned Lord took a review of the cases to which I have called your Lordships' attention; and the principle he extracted from those cases was the foundation of the judgment which he delivered. We are to consider, therefore, that those principles do not rest solely on the Courts in Scotland, but that they have passed under the review of your Lordships' House, and have been approved and sanctioned by your Lordships' House. Your Lordships extracted from them the principles on which the case of Hill v. Hood's trustees was decided; and I advert to the case of Hill v. Hood's trustees more particularly, because it was a material part of the foundation of the decision by the Court below in the case now before your Lordships. It was said at the Bar, that the case of

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Before, however, I state the conclusion which I draw from these cases, it is necessary for me to advert to one case which was cited on the other side. I think only one case was relied on in argument, opposing the current of authorities to which I have called your Lordships' attention, and that was the case of Dick v. Fergusson . It is unnecessary for me to enter into the detail of that case of Dick v. Fergusson , because it was commented on in the judgment to which I have referred; and after the facts of that case were commented upon before that noble and learned Lord, he was of opinion, and your Lordships adopted that opinion, that the decision in that case did not run counter to the authorities in the cases to which I have adverted. Thus much, however, I will say respecting that case. In that case the trustees refused to accept the trust or to act upon it; and in a note by Lord Karnes respecting that judgment, he puts the decision upon this ground:—He says it was competent to the trustees in that case to have disposed of the property in favour of the heir-at-law. The effect of their not acting under the trust was to give the property to the heir-at-law,—they have, therefore, by so doing, declared their intention that the heir-at-law should take it; and considered in that view, it does not at all contravene the current of authorities to which I have called your Lordships' attention. I am justified therefore in saying, that the authorities are uniform upon this subject, and I am of opinion that they establish the position, that the trustees may dispose of this property among certain classes of persons, or among particular objects, subject to the intention expressed by the donor, the creator of the trust.That being, my Lords, the general principle, another objection was made in this case as to the generality of the disposition. It was said, the property is to be given to such relations as the wife shall point out, with the approbation of the trustees. It was then said at the Bar, what is the meaning of the term relations? It is indefinite; and they even went so far as to say, in a certain sense, every man is the relation of every other man; but at all events the classes of the relations in the ascending and descending line are numerous and indefinite. My Lords, the answer I make is this, that in the cases to which I

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My Lords,—The same objection in point of principle will apply to those dispositions which were made in favour of charitable institutions, and in respect of those the same answer has been given. It is remarkable, that, in the second case to which I have referred, the disposition was to the poorest friends and relations of the disponer, and that was considered a valid disposition; and in respect to charitable purposes, according to the law of England, which, as to bequests of this kind, is more strict than the law of Scotland, that would be a valid disposition.For these reasons, my Lords, after carefully attending to this case,—after considering the most elaborate argument of the Bar, from a gentleman who never omits, in the course of his address, any argument which can be useful to his case,—I mean the Dean of Faculty,—looking to those authorities, and to what your Lordships did in the case of Hill v. Hood , I must suggest to your Lordships the propriety of affirming the decision of the Court below in this case. I would humbly move your Lordships, that this judgment of the Court of Session be affirmed.Appellant's Authorities .—Dig. lib. 11. § 7. de leg. 3. et seq.; Voet, 28. 5. 29.; Pothier, de Test. 8. § 1. and 2.; Voet, 30. 1. 36.; Domat, 2. 3. 1. § 1.; 3. Ersk. 9. 6. and 8.; Balfour, tit. Exec. p. 220.; Dirleton, p. 73.; Stewart, p. 74.; 3. Ersk. 9. 8. and 3. 1. 42.; 1. Stair, 13. 7.; 2. Swinburne, p. 463.; 2. Vin. tit 20. de Legatis; 2. Craig, 3. 14.; Com. of Berwickshire, June 18. 1678, (1351.); Trades of Edinburgh v. Heriot's Hospital , Aug. 9. 1765, (5750.); Christie, July 6. 1774, (5755.); Campbell and M'Intyre, June 12. 1824, (3. Shaw and Dunlop, No. 93.); Kames' El. p. 213.; 3. Ersk. 9. 14.; Campbell, June 26. 1752, (7440.); Dalzell, March 11. 1756, (16,204.); 9. Vesey, p. 399. and 404.; Hepburn, Feb. 13. 1699, (7428.); Buchanan, July 23. 1629, (671.); Hamilton, Feb. 23. 1681, (672.); Sholee, Jan. 1684, (672.); Corsan. Feb. 19. 1734, (673.); Campbell, Nov. 22. 1739, (674.);

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Solicitors: Moncreiff, Webster, and Thompson— A. Gordon,—Solicitors.