BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Strachey's Trustees v. Johnstone's Trustees [1896] UKHL 511 (17 February 1896) URL: http://www.bailii.org/uk/cases/UKHL/1896/33SLR0511.html Cite as: 33 ScotLR 511, [1896] UKHL 511 |
||
[New search] [Printable PDF version] [Help]
Page: 511↓
(Before the
(Ante, vol. xxxii. p. 305, and 22 R. p. 396. The case is also reported in the Law Reports by G. J. Wheeler, Esq., under the title Johnstone v. Hauiland.)
Subject_Succession — Debitor non presumitur donare — Double Provisions — Marriage-Contract Provision — Legacy.
A testator by his trust-disposition and settlement directed his trustees to pay to Mrs S., out of funds invested in his business, a legacy of £4000, with interest at the rate of 5 per cent. if she allowed the money to remain in the business.
In an indenture of settlement made three years previously in contemplation of the marriage of Mrs S., the testator had bound his executors, within six months after his death, to pay to the trustees named in the indenture a sum of £4000, with interest at the rate of 4 per cent. from the date of his death, in trust for behoof of Mrs S., and her husband if he survived her, in liferent, and the children of the marriage in fee. Failing children, the sum was to revert to the granter's estate. By the indenture Mrs S. conveyed her acquirenda to the trustees upon the same trusts, except that if there should be no son of the marriage who should attain majority, or daughter who should attain that age or marry, the trustees were to hold the capital of such acquirenda for such purposes as Mrs S. should by will direct, or failing such direction, for her representatives in intestacy.
Held ( aff. judgment of the Second Division) that the legacy was not in satisfaction of the marriage-contract provision, and that the trustees were entitled to payment of both.
Opinion by Lord Watson and Lord Shand, that it was not competent to lead evidence to show that the testator used the term “legacy” in his will in a sense other than its ordinary sense.
This case is reported ante, vol. xxxii. p. 305, and 22 R. p. 396.
At delivering judgment—
Page: 512↓
Now, although the two sets of provisions are very different, both in their application and in the decisions upon them, there is one observation which was made by Sir John Leach with reference to the English rule which is, to my mind, applicable to the Scottish rule. Sir John Leach said in Weall v. Rice ( 2 Buss. & My. 268)—“It is not possible to define what are to be considered as slight differences between two provisions.” “Slight differences,” he adds—and one cannot help observing that after the learned Judge had said it is not possible to define, he begins with something like a definition—“are such as, in the opinion of the judge, leave the two provisions substantially of the same nature; and every judge must decide that question”—of what are slight differences—“for himself.” My Lords, I believe that to be perfectly true as applicable to the construction of the instrument now under your Lordships' consideration, and although I propose to mention one or two differences between the two provisions, I protest against anybody hereafter arguing from the particular provisions to which I refer that I am laying down, or affecting to lay down, any general proposition which governs other instruments. I am speaking of this instrument with all its circumstances, with all its conditions, and the language which I find therein. There is no greater source of error than, where you have been dealing with one instrument, and dealing with it upon what are general principles of construction, and pointing to the particular provisions of it as exhibiting the necessity of applying those general principles of construction, to apply any observations made with regard to the particular language used or the particular circumstances in which the language is used as amounting to a general canon of construction which is applicable to all other instruments whatsoever, though the language may be different, though the collocation may be different, and though the circumstances with which the instrument is dealing may be entirely different. I am, therefore, only endeavouring to construe this particular instrument; and when I look at the two instruments in this case, it appears to me that they differ in very material particulars. There is in the one instrument the language of gift. There is in the other instrument the language of obligation. And I find that where the two things are dealt with they are dealt with differently. In the first deed the obligation is an obligation to the trustees; whereas in the second deed the gift is a gift to the lady herself. And although it may be perfectly true that the gift to the trustees was for the benefit of the lady herself, I am endeavouring to find out from the language of the instrument itself what was in the mind of the testator at the time when he wrote those words; and I cannot doubt that the person who writes these words has in his mind the fact that the provision he has already made for the trustees is a different thing from giving to the lady herself. And although it will indeed, by a circuitous process, perhaps, come round to the trustees, yet it is not the same thing. Therefore, when I am asked to say whether these two are to be read as one, and the one is to be in substitution for the other, I cannot entertain the smallest doubt that the person who wrote these words was under the impression that he was doing what he said he was doing-making a gift, and not implementing the obligation into which he had already entered.
For these reasons—and they are very short and simple ones—it appears to me that we must affirm the judgment of the Court below; and I confess it seems to me that it would be very difficult, getting rid as I say of the confusion that has arisen in some of the English cases from a different rule of law, to suggest that anybody can read these two documents and suppose that the one was intended to be in substitution for the other. That seems to me to be enough to say on the principal argument addressed to us, long as that argument lasted.
With regard to the question of interest, I entirely decline to deal with that. I neither understand that any such question was properly raised in the Court below, nor that there are any materials upon which your Lordships could properly entertain the question again. The fact that interest of some sort or other was admitted to be due, or was not contested to be due, is conclusive against the point as to there being any right to recover it; and if it comes to be a mere question of the amount of interest which ought to be allowed, I have neither the materials nor does there appear to be any ground for altering what the Court has already done.
For these reasons I submit to your Lordships that the proper judgment is, that the interlocutor should be affirmed and the appeal dismissed with costs.
Page: 513↓
My Lords, with regard to this case, having indicated the view which ought to be taken in considering it, I have only to add that I agree in the conclusion which has been expressed by the Lord Chancellor. Prima facie there is the gift as a legacy. I do not say that is sufficient by itself, but in this case it is coupled with such differences in the character of the two provisions that the one cannot, in my estimation be held to be in substitution for the other.
With regard to the tender of evidence made by the pursuer at the bar, whatever authority there may be for the admission of such evidence in the law of England, it is contrary to the rules of the law of Scotland. The other points pleaded by the learned counsel were very technical, and are open to this objection, that they are not pleaded on the record, and were not considered by the Court below.
I agree with my noble and learned friends who have preceded me that there is ample to show this in the present case. I am not going over the circumstances again beyond stating that my mind is influenced not by one thing alone, but by a combination of things—by the fact that it is described as a “legacy,” by the circumstance that it is given to the lady, and not to the trustees to whom the obligation was; and if it be said in answer that the testator would know that giving it to her was the same thing as giving it to the trustees because of the covenant she had come under, then I say, in reply to that, you must again take into account the fact that he gives it coupled with a benefit or privilege which she could not enjoy if those trusts were carried out. Taking all those considerations together, I am satisfied that it was intended to be a gift and not in satisfaction of an obligation.
Page: 514↓
It has been said that there are other provisions in the same clause which tend to show that the testator was only providing for the fulfilment of his obligation under the marriage-contract. In the same clause which provides for the legacy to Mrs Strachey, there is a direction to pay an annuity of £300 to a lady to whom he was under an obligation by a bond of annuity for that amount. The appellants' counsel maintains that in the case of this annuity there is clearly no duplication, but a provision only for fulfilment of the testator's obligation, and for the purpose of the argument this may be assumed to be so. There are obviously considerations which support the view that the legacy to Mrs Strachey is an additional benefit which do not apply in the case of the annuity, in the use of the word “legacy” and the other circumstances to which I have specially referred. But whatever may be said of the direction as to the annuity, there is in the same clause also a provision in favour of the testator's widow, which, like the legacy to Mrs Strachey, gives her additional benefits beyond those which he was under obligation to grant. I have only to add that I think there has been no sufficient ground shown for disturbing the judgment of the Court with regard to the rate of interest.
I entirely concur with what has been said by my noble and learned friend Lord Watson, that such evidence as was proposed to be led could not be admitted under the law of evidence in Scotland. It is said that the evidence is not proposed for the purpose of showing the intention of the testator—we are to gather that from the deed—but for the purpose of showing that he used the word “legacy” in a sense that was not its ordinary sense, and I think that evidence for such a purpose, that is, for the purpose of substituting the word “provision” for the word “legacy” used by the testator, is clearly inadmissible.
On these grounds I am of opinion with your Lordships that the judgment appealed against should be affirmed.
Judgment affirmed.
Counsel for the Appellants— H. Johnston— C. K. Mackenzie. Agents— Preston, Stow, & Preston, for J. C. & A. Steuart, W.S.
Counsel for the Respondents— Sol.-Gen. Graham Murray, Q.C.— S. Dickenson— Sym. Agents— Janson, Cobb, Pearson, & Co., for J. & J. Ross, W.S.
