Mrs Elizabeth Ewen or Graham - Wetherel - Lushington v. Magistrates of Montrose, (Trustees of the late John Ewen,) - Spanki - Robertson [1830] UKHL 4_WS_346

UKHL
Mrs Elizabeth Ewen or Graham - Wetherel - Lushington v. Magistrates of Montrose, (Trustees of the late John Ewen,) - Spanki - Robertson
[1830] UKHL 4_WS_346
Where a daughter had rights under her father and mother's contract of marriage, and the father, at a time when she and her husband had just attained majority, were in pecuniary distress, and the husband was about to sail to India, obtained a discharge from them without the assistance of an agent on their part; and the discharge narrated that it was granted in consideration of L.315, agreed to be given by the father out of his own free-will, and from regard to his daughter and husband, (whereas he entertained different sentiments) and that one half had been instantly paid, (whereas he retained a large part in extinction of an alleged debt, and only gave a promissory-note at twelve months for the balance;) and the other half was to be payable at his death. Held (reversing the judgment of the Court of Session) that the discharge was not binding.

Subject_ Testament — Writ. —

Where a trust-deed of settlement for the foundation of an hospital for boys, was blank as to the sum to be provided, and the number of boys to be admitted—Held (reversing the judgment of the Court of Session) that it was inept.John Ewen married Janet Middleton in 1766; and on the 7th of December of that year, they executed a postnuptial contract, by which it was, inter alia, declared, “That the residue of his whole subjects, whether heritable or movable, shall belong to his children equally; declaring hereby, that in case the said child or children shall afterwards die in minority, without lawful issue of their bodies, and during the lifetime of the said Janet Middleton, their mother, then the general disposition before written, conceived in her favour, shall revive and return to its full force and effect, and she shall have the entire and free disposal of the whole effects and subjects, whether heritable or movable, hereby conveyed, alike as if

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The deed proceeded on the narrative of the marriage between the appellant and Graham—that he intended to go abroad, where he might remain for some time, and that it was proper that he should make a provision for his wife and child. It then set forth that “in like manner, the said John Ewen, out of his own free-will, and from the regard he bears to his said son and daughter, the parties have, with mutual advice and consent, concerted and settled upon the post-nuptial contract underwritten; therefore, in pursuance thereof, the said John Ewen hath instantly, at the making thereof, satisfied and paid to the said James Grahame, the sum of L.157, 10s., as one moiety of L.315 sterling, which he has agreed to give in name of tocher or dowery with his said daughter, of which moiety the said James Grahame and his said spouse hereby grant the receipt, and discharge the said John Ewen, his heirs, executors, and successors, thereof, renouncing the exception of not numerated money, and all other exceptions and objections on the contrary. And sicklike, the said John Ewen binds and obliges him and his foresaids to satisfy and pay to the

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The first moiety of the L.315 was settled by Ewen, discharging an account of L.61, 9s. 3d., which he alleged was due to him by the appellant and her husband, and by granting a promissory-note for L.96, payable twelve months after date. In regard to the other moiety, no other security than the personal obligation contained in the deed was granted for payment of it.It was alleged by the appellant that at this time her father was in opulent circumstances, and in a profitable trade as a merchant, drawing upon an average about L.700 a-year—that he was possessed of heritable property, and that he had never accounted to the appellant for her mother's share of the goods in communion. These, as well as many other allegations made by the appellant, to the effect of establishing fraud on the part of her father, were denied, and no proof was taken in regard to them. It was, however, admitted that the deed was executed on the evening previous to the departure of the appellant's husband for India, and that it was prepared by Mr Ewen's agent; but it was alleged that ample means for deliberation and consideration were enjoyed by the appellant and her husband before the execution of the deed. It was also admitted that they were little more than twenty-one years of age at the period of its execution.

Mr Ewen survived till 1821, by which time he had accumulated

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Two days thereafter, Mr Ewen died.Of this deed, and also of the post-nuptial contract executed by her and her husband, the appellant brought an action of reduction, on the ground, 1st. That supposing the discharge was applicable to her rights as heir of provision under the marriage-contract of her father and mother, (which she disputed,) it had been obtained by fraud and deception, and therefore ought to be set aside. 2d. That if it did not import such a discharge, then the deed of settlement was in fraudem of her rights as heir of provision. 3d. That as the deed of settlement contained blanks in essentialibus, it was an incomplete deed, so that her father had died intestate, and she was entitled to succeed to him as his heir at law and next of kin. And, 4th. That as the deed of settlement was executed upon death-bed, her rights as heir of provision could not be affected by it, and that a discharge by an heir of a right to reduce a death-bed deed was inept.

On the other hand, the respondents maintained, 1st. That the

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The Court reduced both the discharge and the deed of settlement; but, on a petition by the respondents, while they so far adhered to their interlocutor as to reduce the trust-deed, “as having been granted in fraudem of Ewen's marriage-contract with Janet Middleton,” they altered their interlocutor “in so far as it may be construed to extend to the reduction of the marriage-contract entered into betwixt the respondent (appellant) and James Grahame, her husband: And found it unnecessary to reduce the said contract, in respect that the same does not import any discharge of the rights competent to the pursuer (appellant) on the death of her father, as heir of provision, under her father and mother's contract of marriage.” *Against this judgment the respondents appealed; and, on the 28th of June, 1825, the House of Lords found that “the marriage-contract entered into between the respondent and James Grahame, her husband, imports a discharge of all the rights competent to the pursuer as heir of provision under her father's and mother's contract of marriage;” and, therefore, reversed the interlocutors in so far as inconsistent with that finding, and remitted the case back to the Court of Session. †When the case returned to the Court of Session, decree of reduction on the head of death-bed was (of consent) pronounced as to the heritable property; and the remaining points as to the fraud, the blanks in the trust-deed, and the effect of death-bed in regard to the movables came to be discussed. With reference to these points, the Lord Ordinary found “That there is no evidence produced in process sufficient to establish that the subscription of the pursuer (appellant) or of her husband to the postnuptial contract of marriage was obtained by the fraud of her father, the late Mr John Ewen, or that the consideration given by that deed, in return for the pursuer's discharge of her rights under her mother's contract of marriage, was, considering the probable amount of Mr Ewen's fortune at the time, unfair or

Footnote

* 2 Shaw and Dunlop, p. 612.† Ante I., page 595.

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Footnote

* Note .—It appears from that part of the trust-deed which is intended to mark out the powers and duties of the managers of the hospital, that the testator had been aware that the funds destined for this purpose might not be sufficient for carrying his object into immediate execution, and that he intended to allow them to accumulate for a certain time. It appears farther, that he intended to limit this accumulation by fixing the sum at which it was to stop; but that, not having made up his mind when the deed was executed, the sum was left blank, and that he died without having had it filled up. The question, and it is one of considerable difficulty, comes therefore to be, whether or not is the uncertainty thereby created, as to the period of the accumulation, and, of course, as to the size and extent of the hospital at its commencement, or the consideration that the testator's intention of fixing these himself, has not been carried into effect, sufficient to render void his declared purpose and object of founding an hospital? The Lord Ordinary thinks it can scarcely be maintained that the testator's failure to complete any direction, however minute and trifling, as to the management of the hospital, which it may appear he had intended to give, can have such an effect. Thus, suppose (to take the cases put by the defenders) that in pointing out the dress to be worn by the boys, he had declared that they were to wear cloth of a colour, or that they were to have a flesh dinner on days of the week, and that he had died before filling up these blanks, it will not surely be held that such an omission would have totally defeated his main purpose, and carried the funds to his heirs at law. But if this cannot be maintained, then some other criterion must be resorted to, and the Lord Ordinary cannot see any line of distinction but one founded on the importance of the omission. He conceives such blanks will only be fatal which render uncertain either the object and purpose of the bequest, the person in whose favour it is made, or the amount of the sum bequeathed, or, at least, that the direction which was intended to be given, must be of that nature and importance that it is reasonable to presume the testator would not have inclined to leave the legacy unless accompanied by the direction. In the

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The appellant reclaimed, but the Court, on the 5th of February, 1828, adhered. *

Mrs Ewen or Grahame then appealed.Appellant. —1. Independent of the allegations as to which no proof has been allowed, there is sufficient evidence from the admitted facts, and what is set forth in the deed itself, to establish that it was obtained by fraud Under the marriage-contract of her father and mother, valuable rights were secured to the appellant, and which it now appears were worth upwards of L.14,000. These rights she is made to discharge in consideration of L.315, of which one half was not to be payable till after her father's death, and for which no security was given; while the other half was not paid in full, but the amount of a pretended account set off against it, and a promissory-note granted for the balance. Besides, the deed sets forth a falsehood calculated to mislead and deceive the appellant. It states that the payment was made, not in respect of the obligation of which her father was truly seeking a discharge, but “out of his own free-will, and from the regard he bore to his son and daughter.” If this statement were true, and the L.315 was given animo donandi, then no consideration whatever was paid to the appellant for the discharge.

Footnote

present case, it does not appear to the Lord Ordinary that the blanks in the deed are of that importance. The amount of the legacy to be paid by the trustees is clear and certain; the persons who are to reap the benefit are distinctly specified; and the nature and the quality of the maintenance, clothing, education, and apprentice-fees which they are to receive are fixed by reference to another hospital, to which the new one is, in all these respects, to be similar. Even had the clause as to the extent of the accumulation been altogether omitted, there seems to be direction sufficient to regulate this matter in a previous part of the deed, where the testator directs that the sum bequeathed, with the interest and profits arising from it, shall remain vested in the managers, ‘and be laid out and managed by them for the purposes foresaid,’ under such rules and regulations as he should afterwards make; or, failing such, under rules similar to those existing for the management of Gordon's Hospital, “with such additions to, or alterations thereon, as may be made by my said trustees, and which they are hereby empowered to do.” So that there does not appear to be much necessity for the interference of a Court of Equity to supply the defect. It may be further observed, that the uncertainty of the period of accumulation is reduced within comparatively narrow limits, by the operation of the Act of the 39th and 40th Geo. III. cap. 98, by which such accumulation is restricted to the period of twenty-one years from the time of the testator's death. The blank as to the number of boys seems of little moment, as this fell to be regulated by the ultimate amount of the fund, and the number is allowed by the testator to be afterwards augmented, as the funds may permit.* See 6 Shaw and Dunlop, p. 479.

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2. The blanks in the trust-deed are fatal to it, being in essentialibus. The grantor had two objects in view—the accumulation of a certain sum of money with the view of founding an hospital, and the specification of the persons who were to enjoy the benefits of that hospital. To give legal effect to these objects, it was necessary to specify the amount of the sum with which the hospital was to be founded, and the number of persons who were to have the benefit of it. Unless this were done, it would be impossible to execute the will. The grantor might either have done it himself, or by means of third parties. In the present case, he had evidently intended to do so himself, because he leaves blanks to be filled up, and confers no power upon any one to fix either the one or the other. The deed, therefore, is incomplete, and being so, the grantor has died without duly executing his will.3. It is admitted that the deed of settlement was executed upon death-bed, and it is settled law, that no discharge previously granted by the heir can prevent him from challenging the deed on that ground. The question therefore comes to be, whether the appellant is entitled to challenge the deed on the head of death-bed. It is said that this right is confined to heritable property; but this is a mistake. It is competent to an heir of provision, to the effect of maintaining his rights, of whatsoever nature, unaffected by any deed executed on death-bed.Respondents. —1. Both the appellant and her husband were quite capable of judging of the value of their rights when they granted the discharge, and the price paid by Mr Ewen was with reference to the actual state of his circumstances, and, considering the contingent nature of the appellant's rights, perfectly fair. He might have died utterly insolvent, in which case her right would have been worth nothing at all, whereas she got a present payment of L.157, and an obligation for a sum of equal amount. But supposing that there had been an inequality in the bargain, that circumstance is not relevant to set it aside; neither can any weight be put on the introduction of the expressions as to the payment having been made out of Mr Ewen's own free-will, and from regard to the appellant and her husband. That statement was quite consistent with the truth. He was under no obligation to pay them a single fraction, and it depended

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2. The blanks in the deed are immaterial, for although the grantor himself has not specified the amount of the capital or the number of boys, he has not left these involved in uncertainty. He has committed them, with the other details, to the discretion of the trustees, and he has specified the mode in which they are to he carried into effect, by declaring that the hospital is to be similar to Robert Gordon's hospital in Aberdeen, and that the same rules that exist in regard to that hospital are to be applied to his hospital; so that, having that model before them, the trustees have sufficient directions as to the money to be expended and the number of boys provided for. Even if the amount had been left uncertain, it would be fixed and ascertained by the statutes 39 and 40 Geo. III. c. 98.3. The plea on the head of death-bed is totally unfounded. It has been already decided that the appellant has discharged her rights as heir of provision, and therefore she cannot found upon them. But even if she could, the law of death-bed does not apply to movables.Lord Wynford .—My Lords, The father of the appellant made a settlement on his marriage, which contains the following clause:—
“That the residue of his whole subjects, whether heritable or movable, shall belong to his children equally; declaring hereby, that in case the said child or children shall afterwards die in minority, without lawful issue of their bodies, and during the lifetime of the said Janet Middleton, their mother, then the general disposition before written, conceived in her favour, shall revive and return to its full force and effect, and she shall have the entire and free disposal of the whole effects and subjects;”
but in case there is a child which survives her, then all the property which these parties then possessed, or which might be acquired by him , previous to his death, was to belong to those children. This instrument left to the settler, perhaps, the power of squandering his property in his lifetime; but whatever he left at his death, whether possessed by him at the time he made the settlement, or subsequently acquired, became the vested property of his child or children. The appellant was his only child, and on the death of her father and mother she became entitled, under this settlement, to all the property of which he died possessed—to what he left behind him. The appellant married James Graham. No settlement was made by these parties at the time of their marriage. About a year after their marriage they were about to proceed to London; at ten o'clock of the night preceding their departure, when they were on the point of leaving their country and all that was dear to them, perhaps for ever,—when, in addition to the anguish that such a separation must occasion, they must have been agitated by the hopes and fears that the

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Footnote

* The passages in italics underscored by his Lordship.

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I think, however, that the deed of October 1821 is void for uncertainty, and that the property which by that deed Ewen attempted to give for the support of a charity which he intended to establish, did not pass to the trustees appointed by that deed, and would therefore become the property of his daughter, the appellant, as his only child. After making some trifling provision for some members of his family, the deed contains these words:—
“5thly, For payment to the magistrates and town council of the town of Montrose, the place of my nativity, and the ministers or clergymen of that town, of whatever sect or denomination of Christians they may be, or to any one or more of their number who may be appointed by them, the said magistrates and council, and clergymen, to receive the same, of the sum of L.6000 sterling, for the foundation and establishment of an hospital in Montrose, similar to Robert Gordon's hospital in Aberdeen, for the maintenance, clothing, and education of the lawful sons and grandsons of decayed and indigent burgesses of guild, and craftsmen burgesses of the said town of Montrose; and which sum, and interest and profits arising therefrom, shall remain vested in the said magistrates and town council, and clergymen, and be laid out or managed by them for the purposes aforesaid, under such rules, regulations, and directions as I shall establish and appoint by any separate deed or writing under my hand”

—he did not make any such deed;—

be diverted at any time from the uses and purposes for which the same is hereby destined, or applied to any other use or purpose whatever; and the said magistrates and town council, and clergymen, shall lend out the free balance of the interest and profits arising from the said sum (that is the L.6000) and residue, every year, on such heritable or personal security as they may deem sufficient at the time, so as the same may accumulate, with the additional interest arising thereon, until the principal sums and accumulated interests shall amount to the sum of L. sterling.”
“and failing such deed or writing, under rules and regulations similar to those now existing for the government and management of Robert Gordon's hospital in Aberdeen, aforesaid; and with such additions to, or alterations thereon, as may be made by my said trustees, and which they are hereby empowered to do. And, with respect to the rest, remainder, and residue of my means, property, and estate, including, as a part thereof, the aforesaid legacy to the said Baron Grahame, my grandson, in the event of his death, before his receiving the same, and also the sums to be secured and set apart by my said trustees for answering and paying the aforesaid annuities to my said daughter and the said Elizabeth Wallace, after the said annuities shall cease and determine, and be no longer payable, I hereby will, direct, and appoint such residue and remainder to be paid or conveyed and made over by my said trustees to the said magistrates and town council and clergymen of Montrose, or to any one or more of their number authorized by them to receive the same, as an addition to, and to be employed for the same ends and purposes with the foresaid legacy of L.6000; declaring, that the said sum (that is the L.6000) and residue shall be payable by my said trustees at the first term of Whitsunday or Martinmas that shall happen twelve months after my decease, or as soon thereafter as the funds under trust can be realized: Also declaring, as it is hereby specially provided and declared, that neither the said sum (that is the L.6000) and residue, nor any part thereof, shall

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Therefore, your Lordships will perceive that the L.6000, and the L., is to be put out, in the manner directed, to raise interest upon it, and that that interest is to go on accumulating till it amounts to the sum of pounds blank; and till it has amounted to the sum of pounds blank, the trustees can build no hospital, and they can do no act whatever in the execution of this trust. Now, my Lords, when does it amount to the sum of pounds blank? No human being can possibly tell. If your Lordships cannot give some meaning to the blank, it is a trust which cannot by possibility be executed. But, my Lords, let us go on with the rest of the deed. “When the same shall be stocked, secured, and employed”—(when what shall be stocked, secured, and employed?)—when the same pounds blank “shall be stocked, secured, and employed upon lands, bonds, obligations, or other sufficient security, from time to time, for erecting and maintaining the foresaid hospital, and for the maintenance, clothing, and education of boys.” How many boys? One? one hundred? or one thousand? The sums constituting the provision are uncertain, and the objects to be provided are equally uncertain. Now, my Lords, although, undoubtedly, supposing these sums were certain, and supposing the objects to be provided for were certain, the rules and regulations themselves are sufficiently provided for, yet those rules and regulations can never be called into existence, till you get rid of the other difficulty; till you can make that certain which is left so uncertain in the deed. I agree with one of the learned judges in the Court of Session, that ambiguity will not render a deed void, unless it be such that no construction can be put on it. I also think, that although one part of the deed be quite unintelligible, the other parts of the deed may be good. But how can any part be carried in effect, when nothing is to be done in execution of the trust until a sum is raised which is nowhere specified; and no authority is given to any one to determine what is to be the amount of that sum which is to be realized before any thing is done? My Lords, we have been referred upon this subject to one case, and to one only. That case was decided by your Lordships' House, when you were assisted by a learned judge, whose decease we all lament—I mean that excellent man, the late Lord Gifford. I entirely subscribe to every syllable said by Lord Gifford on that case. It was the case of Hill and Others, appellants, v. Burns and Others, respondents . “Alexander Hood, of the Island of Mountserrat, after bequeathing certain legacies, conveyed the residue of the estate, real and personal, amounting to about L.30,000, to his sister, Mary Hood, of Glasgow, and her heirs, for ever. Thereafter, she executed a trust-settlement in

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“I appoint the residue of my said estate to be applied by my said trustees and their aforesaids, in aid of the institutions for charitable and benevolent purposes, established, or to be established in the city of Glasgow, or neighbourhood thereof, and that in such way or manner, and in such proportions of the principal or capital, or of the interest or annual proceeds of the sums so to be appropriated, as to my said trustees, and their aforesaids, shall seem proper: Declaring , and I hereby expressly declare, that they shall be the sole judges of the appropriation of the said residue for the purposes aforesaid. ””
My Lords,what was the question in that case? It was said, it is necessary for this lady distinctly to state who are the objects of her bounty. Lord Gifford answered, No; it is not necessary for this lady distinctly to state who are the objects of her bounty. She says it is in aid of all the charitable institutions existing, or which hereafter are to exist; and in order that there may be no uncertainty as to what charitable institutions now exist, or as to what may hereafter exist, it was left to her trustees to say who were to be the objects of her bounty. Now, your Lordships perceive, that in that case, there is not the uncertainty which there is in the present. There the extent of the fund given was ascertained, for it was what the deed expressed; and the mode in which that fund was to be managed, was left to the discretion of the trustees. In the judgment in that case, Lord Gifford goes into a learned argument, and refers to a vast number of cases, (which I will not trouble your Lordships with reciting,) every one of which stands upon the same principle as that case which Lord Gifford decided, namely, that there was a certain fund, and that the ambiguity as to the appropriation was got over by the discretion vested in the trustees.Now, no discretion is vested in the trustees here. If it had been said in this deed, “the trustees shall begin to build as soon as they shall have accumulated such a fund as they think equal to the purpose I have in view,” that would have obviated the difficulty; because then the time when the hospital was to be built would be left to their discretion. But there is no such discretion left with them, or with any body else; and it is quite uncertain what the testator's own intention was upon the subject.My Lords,under these circumstances, it is with regret that I feel it my duty to advise your Lordships to reverse the decision of the Court below, for which I have the greatest respect, but I must conscientiously exercise my own opinion. I have done so in this case; and after having given to it the most attentive and anxious consideration, I feel myself bound to recommend to your Lordships to reverse the decision of the Court below; and to declare that both these deeds should be reduced.The House of Lords accordingly reversed the interlocutors complained of, and reduced the deeds.

Appellant's Authorities .—M'Diarmid, 28th March, 1828, ante III. p. 38. Trinch

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Solicitors: J. Butt— A. M'Crae—Solicitors.