John Dixon and William Dixon - Dr. Lushingto - Murray v. John Fisher and Others - Lord Advocat - Solicitor General [1833] UKHL 6_WS_431

UKHL
John Dixon and William Dixon - Dr. Lushingto - Murray v. John Fisher and Others - Lord Advocat - Solicitor General
[1833] UKHL 6_WS_431 · 1817-04-11
A father bequeathed a provision to his daughter in life-rent, and her children in fee, declaring that the provision should be in full of all that his daughter could claim from his estate—Held, (affirming the judgment of the Court of Session,) that the right of the children to the fee was not affected by the daughter repudiating the provision, and betaking herself to her legal claims.By a disposition and settlement, dated 11th April 1817, and a codicil thereto, dated 15th March 1820, William Dixon disposed of all his heritable and moveable estate, in the following terms:—
“I William Dixon, lately residing at Govanhill near Glasgow, now of Calder Iron Works, being resolved to make a settlement of my affairs to take place in the event of my death, in order that all disputes and differences with regard to my property may be avoided; and considering that I have already in part provided for my wife by a separate life-rent deed

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Codicil .—“I, the before-designed William Dixon, considering that by the blessing of Providence my worldly affairs have continued to prosper, whereby I am enabled and feel it to be my duty to enlarge the provisions to my daughters; therefore, and for the

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The appellants, on the death of their father, accepted the trust, and entered into possession of the estates, in terms of the deed of settlement and of the codicil. Margaret Dixon (Mrs. Fisher), the mother of the respondents, was a daughter of the testator; and having repudiated the liferent provision bequeathed to her, and betaken herself to her right of legitim, she and her husband instituted a process of multiplepoinding in the name of the appellants, in order that the estate of the testator might be divided among the parties according to their respective rights; and a relative process of count and reckoning was also instituted.In the process of multiplepoinding she claimed 12,000 l .

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After various proceedings had taken place the Lord Ordinary ordered the appellants to consign in the Bank of Scotland the sum of 4,000 l . sterling, with interest, or, in their option and without prejudice to the pleas of the parties, to grant and lodge in process a security therefor over their heritable estate. The money, including interest, amounting to about 5,000 l ., was accordingly lent out, and the bond and disposition in security bore that the same “quoad both principal and interest is granted in trust, for behoof of the aforesaid Margaret Dixon otherwise Fisher, and her children, and for the said Daniel Fisher her husband, according to their respective rights and interests either at common law or under the said deed of settlement and codicil of William Dixon the elder, or otherwise as may be determined in the action of multiplepoinding herein-before recited, and subject at all times to the orders of the said Lord Ordinary or of the Court, to be pronounced in said process; the rights and interests, and pleas of the whole parties being reserved to them entire, in terms of the before-recited interlocutor.”

The Lord Ordinary ordered cases to the Court, and issued the following note:—

of that child in fee, the declaration that the bequest shall be in full of all the child's legal claims imports a condition on the compliance with which the right of fee as well as that of the life-rent is dependent, is one which appears to the Lord Ordinary to be attended with considerable difficulty. The case of Watt v. Ewan , 10th July 1828, founded on by the pursuers, is certainly very nearly in point, and on the strength of that decision the Lord Ordinary was at first inclined to give judgment in favour of the pursuers; but in the present case, independently of the expressions in the settlements, marking perhaps more clearly the testator's intention, there is this additional distinction, that the provision is in favour of the testator's daughters in life-rent for their life-rent use allenarly, and ‘their children in fee,’ while in the case of Watt v. Ewan , the provision was, “in favour of my son John and his present wife, and longest liver of them, in life-rent, for their life-rent use of the interest thereof, and the fee thereof to the children procreated between them, share and share alike;”—which expressions might perhaps be held to denote a right in the wife and children of the specified marriage more absolute and unconnected with the rights of the father than that created by the general expressions employed in Mr. Dixon's settlement. As the point is of some importance, and as the report of the case Ewan v. Watt does not afford the means of ascertaining the precise grounds upon which it was decided, the Lord Ordinary has thought it most advisable to order cases. The multiplepoinding and count and reckoning depending between the present defenders and the mother of the pursuers include the whole funds of the testator; the very sum now pursued for is lent out on security in virtue of an order made in those processes; and the Lord Ordinary understands that the determination of the pursuers' mother to claim legitim or to accept the provisions of the settlement will depend on the result of those processes. But the question, how far the right of fee in the children is in any way conditioned on that determination, admits of being separately discussed; and that course seems to have been sanctioned by Lord Cringletie's interlocutor of the 26th May 1829, “repelling the preliminary defence that this action ought to be dismissed, or remitted hoc statu to the multiplepoinding,” and appointing the parties to prepare a record.”
“The question whether, in the case of a bequest by a father of a certain sum to a child for his life-rent use allenarly, and to the children

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The Second Division of the Court directed the parties to lay the revised cases before the other Judges, in order to obtain the written opinion of their Lordships, “whether the claim made on the part of the pursuers be or be not well founded.”The Lords President, Balgray, Gillies, Craigie, Corehouse, and Moncreiff, concurred in the following opinion:—sons or the survivor of them.” Also in the codicil conferring an additional provision it is declared, “That the said present, like the former provision, shall not be subject to the jus mariti, deeds, curatory, or administration of any husbands whom my said daughters have or may marry, but shall, along with the said former provision, be lent out and secured on good security, at the sight and in the name of my sons or survivor, along with Mr. Nathaniel Stevenson, writer in Glasgow, as trustees for the use and behoof of my said daughters in life-rent allenarly, and their children in fee, the fee being to be divisible among the children by any joint deed of the parent or the survivor.” We consider these clauses of great importance, and we think that the grantor by these deeds created two separate and distinct estates, the one of life-rent and the other of the fee, and that these estates were in no ways dependent upon one another. We are the more inclined to be of this opinion, from the circumstance of trustees being appointed to hold the fee separately for behoof of the children, independent of the right of their parents. We therefore cannot see upon what grounds in justice the children can be deprived of the fee by any act or deed of the life-renters, who are entitled to manage their own property as they think fit, without control on the part of their children. The expressions made use of in Mr. Dixon's settlement, and to which the defenders refer, are to be considered with great caution, particularly when direct and positive rights are created. Where the intention of a grantor is clear and explicit, the inductive cause is of little importance in testamentary deeds. Whatever were Mr. Dixon's intentions in a certain event, yet, as that certainly has not taken place, without an express declaration it cannot be maintained that the daughters, by claiming any thing due to them, either as a share of the goods in communion at their mother's death or in the name of legitim at their father's death, could deprive their children of a right of fee with regard to which their mother had no interest whatever but that of life-rent. If Mr. Dixon had intended to make the renunciation of those rights a condition of the grant of the fee he ought to have expressed his intention in a more direct and explicit manner. Under these circumstances we conceive it to be improper for a court to extend a condition from presumed intention. In the present case we think that neither of the parties could make the condition of the other better or worse. Upon the whole, we incline to think that the case of Watt v. Ewan , decided 10th July 1828, is very nearly in point, and ought to be followed as a precedent. It may be observed that the plea of hardship, which has been stated on the part of the defenders, is not altogether just or correct. The grantor's heirs will enjoy the life-rent of the grandchildren's provisions during the life of their mother, and so annually diminish the claim.”
“We have carefully considered the disposition and settlement of the deceased Mr. William Dixon, dated 11th April 1817, as also the codicil thereto annexed, dated 15th March 1820.
By these deeds it is declared, that the provisions to his daughters shall not be subject to the jus mariti or right of administration of their husbands, or liable to be attached for their debts or deeds, “but shall belong exclusively to my daughters in life-rent, for their life-rent use allenarly, and to their children in fee, and shall be so secured at the sight of my said

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Lord Fullerton:—

intention. The effect of the deeds clearly is to create two distinct and independent rights, that of life-rent in favour of the daughters, and that of fee in favour of the children of those daughters. Then follows the declaration, “that the provisions above mentioned shall be in full to each of my daughters, their husbands, children, or assignees, of all they could ask or claim in and through my decease legally or conventionally, or any other manner of way.” Now, I conceive it would be outstepping the limits of legitimate construction to connect with the surrender of legitim not only the provisions of life-rent, created in favour of the daughters who had a right of legitim, but the provision of fee in favour of the children who had no such right, so as to raise by implication a condition affecting the bequest to the children. The question seems to be substantially the same with that raised and decided in the late case of Ewan v. Watt ; and though there may be some slight difference in the expression of these deeds, I do not think that the difference is such as to warrant the application of a different principle to the present case.”
“I concur in the foregoing opinion. If the present could be viewed as a mere question of probability, very plausible reasons might perhaps be given for the supposition that the testator intended to make the right of fee, as well as that of life-rent, dependent on the surrender of the legitim by the daughters. But I do not think that the deeds contain words capable of supporting such an

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Lords Mackenzie, Medwyn, and Newton concurred the following opinion:—

provisions on the daughters, insomuch that even in the case of any daughter predeceased it is expressly mentioned, that the children of that daughter are to receive it ‘as coming in place of their mother,’ and powers over the fee, at least of one half, if not of the whole,—powers of great importance,—are reserved to the daughters or their husbands. The whole of each provision is manifestly viewed as unum quid provided in favour of each daughter; nor is there any thing absurd, but the contrary, in making provisions for daughters by a destination such as is here done, which reserves the full benefit of it for themselves and their children. repudiates the provision, which she has full power to do; yet her children claim the fee of the provision, as being settled on them independently of her or her deeds. We think the answer to this claim good, that the manifest intention of the testator was that the provision as unum quid should have effect as a provision on his daughter, and as a satisfaction of his daughter's claim, legal or conventional, and not otherwise; and therefore, if it cannot have this effect, it cannot have effect at all. He never intended it, nor has he expressed it, as a separate independent legacy on his grandchildren. This construction, we think, is certainly agreeable to the true intention of the testator, and we are not aware of any principle by which that intention can be defeated and a result produced which the testator never intended. The case of Ewan does not appear to us to be one in which the circumstances were precisely similar to the present. In that case there do not appear to have been the same grounds for certainty that the provision was viewed as one provision on the child whose legitim was to be discharged, and on the want of this evidence of intention we believe the decision of the case must have rested. In this case we see no room for doubt on that subject.”“In this case the testator declares, that the provisions are granted as “provisions to my daughters, and for the love and favour which I bear to them.” The mode adopted of providing the daughters is by giving them sums of 4,000 l . each. These sums, to be sure, are directed to be laid out on securities for them in life-rent allenarly, and their children natis aut nascituris in fee. But still the whole grants of these sums were certainly viewed as

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2. The deed then bears, “that the provisions above mentioned shall be in full to each of my said daughters, their husbands, children, or assignees, of all they could ask or claim in and through my decease, legally or conventionally.” The husbands, children, or assignees are evidently mentioned only as persons to whom the daughter's right might pass. The substance of the clause relates to daughters, that is, that these provisions were to be in full of their claims, legal and conventional. The idea of applicando applicandis is admissible. The husband, children, and assignees could obviously have no right, legal or conventional, of their own, not derived through the daughter that was the wife, mother, or cedent. The provision then may be read as if the words had been simply, “that these provisions shall be in full to my said daughters, of all they could ask or claim in and through my decease.”3. The daughter Margaret Dixon (Mrs. Fisher) refuses to give up and claims her legitim, and she

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The Court, on resuming consideration of the case, with the opinions of the consulted Judges * , pronounced, on the 24th Nov. 1831, the following interlocutor:—

Footnote

* Three of their Lordships, viz., the Lord Justice Clerk, Lord Glenlee, and Lord Cringletie, expressed opinions to the same effect as those of Lord Mackenzie, Lord Medwyn, and Lord Newton; but Lord Meadowbank agreeing with the other seven Judges who had signified their opinion that the defences should be repelled, there was thus a division among the Judges of eight to six.

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“The Lords on the report of Lord Fullerton, having considered the revised cases for the parties and other proceedings, with the opinions of the consulted Judges, in respect of the said opinions find that the right of the pursuers, the grandchildren of the deceased William Dixon, to the fee of the provisions in their favour in the settlements of their said grandfather will not be affectable by the repudiation by their mother, Margaret Dixon or Fisher, of her right to the life-rent of the said provisions; and with this finding remit to the Lord Ordinary to proceed further in the cause as to his Lordship shall seem just.” *
Against this interlocutor John and William Dixon appealed.Appellants . —By the settlements of Mr. Dixon the provision made in favour of each of his daughters formed one estate or unum quid, notwithstanding the directions given by him regarding the disposal, in certain events, of the life-rent and fee. There is a clear distinction between the appointment and creation of a legacy or estate, and the laying down rules for the disposal of such estate or legacy after it has been established or created; a distinction pretty much the same as that which has been employed in both parts of the kingdom, to settle questions with regard to the vesting of legacies, and by which it has been held that where a condition is so closely entwined in the dispositive or bequeathing clause, as to form an articulate part of it, the legacy shall not vest till the condition is fulfilled; though, where the legacy is first given by one

Footnote

* 10 S. & D., p. 55.

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The declaration in the settlement has no reference to the children of the daughters separate from that which it bears to the daughters themselves; and there is no reason for applying to the clause the maxim applicando singula singulis.It was plainly the testator's intention to create only one estate for each stirps or familia, and therefore the whole must be taken as standing or falling by the option which Mrs. Fisher may choose to make as to insisting on her legal provisions, or being satisfied with the life-rent of the 4,000 l . ‡Besides, the interlocutor is erroneous, in so far as it gives the respondents more than even they themselves

Footnote

* Fouke v. Duncans , March 1, 1778, Mor.8092; Burnett v. Forbes , Dec. 9, 1783, Mor. 8105.† See Swinburn on Wills.‡ Williamson v. Cochrane , 28th June 1829, 6 S. & D. 1035; Ewans v. Watt , 10th July 1828, 6 S. & D. 1125.

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Respondents .—By the deed of settlement and codicil there are created two separate and independent estates; one of life-rent in favour of Mr. Dixon's daughters, and another of fee in favour of the children of the daughters. The estate thus vested in the grandchildren is totally independent of their immediate parents, and the grandchildren are plainly direct objects of the testator's affection and regard, and there are no grounds upon which it can be held that the daughters by any voluntary act can defeat the provisions in favour of their children, and deprive the latter of the benefit conferred on them by the testator. Such generally being the nature of the provisions to the daughters and to the grandchildren, it cannot be contended that the provisions to the grandchildren, who had no claim for legitim, were made conditional upon the acceptance by the daughters of their peculiar provisions in discharge and satisfaction of the legitim to which they alone had right. It is plain from the whole course of the appellants' reasoning that their plea results in this: that it is unlikely the testator would have done what he has done in the circumstances if he had imagined that his daughters would claim their legal provisions; and therefore they maintain that this claim on the part of the daughters must vacate the provisions of the grandchildren. But in whatever way the

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Lord Chancellor .—When the case of Dixons v. Fisher was argued at your Lordships bar I proposed to stop the counsel for the respondents, conceiving it was unnecessary to call upon them. There is no doubt whatever that in this case there was considerable difficulty in the Court below upon the

Footnote

* Newlands v. Newlands , 9th July 1794, Mor. 4289. affirmed on appeal; Thomson v. Thomson , 9th July 1794, Bell 72; Allardice v. Allardice , 25th Feb. 1795, Bell 156; Watherstone v. Rentons , 25th Nov. 1801, Mor. 4297; Thomson v. Forrester , 6 S. & D. 875, 4 W. & S. 136, affirmed; Seton v. Seton , 6th March 1793, Mor. 4219; Scott v. Crombie , 14th Feb. 1826, 4 S. & D., 454, affirmed on appeal 14th May 1827, ante, Vol. II. 550; Mein v. Taylor's Children , 8th June 1827, Fac. Coll. No. 96.

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed.Solicitors: Spottiswoode & Robertson— Richardson & Connell, Solicitors.