Campbell's Trustee v Lamont's Executor
| Jurisdiction | Scotland |
| Judgment Date | 08 July 1941 |
| Date | 08 July 1941 |
| Docket Number | No. 47. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
SuccessionMarriage-contractConstructionFund provided by husbandDestination failing issue to husband's "own nearest heirs at the time of the succession opening to them"Husband predeceasing wifePayment postponed until death of wifeDate for determination of heirsHusband's death or death of wifeVesting.
An antenuptial contract of marriage, the funds in which had been contributed by the prospective husband, provided that, upon the death of the spouses or on the second marriage of the wife in the event of her surviving her husband and re-marrying, the trustees should, if there were no child or children of the intended marriage, but only upon the termination of the liferent in the event of the wife being the survivor, "convey and make over the estate and effects hereby conveyed by [the husband] to himself or such person or persons as he may have directed by will or other writing under his hand which failing to his own nearest heirs, such heirs to be ascertained as at the time of the succession opening to them." The husband died in 1893, without issue and without having exercised the power of disposal reserved to him under the marriage-contract. He was survived by his wife, who died in 1937 without having remarried.
In a question whether the persons entitled to succeed to the marriage-contract funds as the husband's nearest heirs within the meaning of the marriage-contract were his nearest heirs at the date of his death or at the date of the death of his widow,
Held that the date to be taken was the date of the husband's death; per Lord Mackay, on the ground that the fact that the truster's direction to convey to his nearest heirs followed upon directions to convey (1) to himself, and (2) to his nomineedirections operative not later than his deathshowed that the date of his death must also have been the date intended by him for the ascertainment of his heirs; per Lord Wark, on the ground that, following Murray's Trustees v. Watts,1939 S. C. 382, and Anderson's Trustees v. Forrest,1917 S. C. 321, in the absence of clear indication of a contrary intention, their natural and primary meaning must be given to the words "nearest heirs." Lord Russell concurred in the judgment but delivered no opinion.
By antenuptial contract of marriage between Celestine Norman Lamont (afterwards Colonel Lamont Campbell), of the first part, and Margaret Huison Russell (afterwards Mrs Margaret Huison Russell or Lamont Campbell), of the second part, dated 19th April 1882, and registered in the Books of Council and Session on 31st October 1902, Colonel Lamont Campbell, in contemplation of his marriage, assigned, conveyed, and made over to the trustees therein designed for the purposes therein set forth, his whole right and interest in and to the means and estate, heritable and moveable, conveyed by, or falling under, the trust-disposition and settlement of his father, Archibald James Lamont of Lamont, and particularly, but without prejudice to the said generality, his whole right and interest in and to the lands of Robroyston in the county of Lanark which belonged to Archibald James Lamont and were described in an earlier trust-disposition granted by him. Certain means and estate were also to be conveyed to the trustees of the marriage-contract by Mrs Lamont Campbell, but in fact no estate was conveyed by her to the trustees.
The purposes for which the marriage-contract estate was to be held were,inter alia, as follows:"In the third place, on the death of the said spouses or on the second marriage of the second party in the event of her surviving the first party and entering into a second marriage, the said trustees shall hold and apply pay and convey the capital of the said trust funds to and for behoof of the child or children of the said intended marriage and their issue in such proportions under such restrictions (including a restriction to a liferent) and upon such terms and conditions as the first party, whom failing, the second party after his death may appoint by his or her will or other writing under his or her hand, and failing such appointment equally to and for behoof of the whole of said children and the survivors and survivor of them jointly with the issue per stirpes of such of them as may have predeceased leaving issue payable in the case of sons upon their respectively attaining to majority, and in the case of daughters upon their respectively attaining to majority or being married, whichever of these events shall first happen. Declaring that in the event of a child of the present intended marriage succeeding to the entailed estate of Lamont and others hereinafter mentioned prior to the period of actual division of the capital of said trust funds and estate the first party's right and interest in which is hereinbefore conveyed, then the child so succeeding and his issue shall ipso facto be excluded from any right to a share of the said capital in any event whatever, and the division of the same shall take place as if no such child or his issue existed: And in the event of there being no child or children of the said intended marriage or of their all predeceasing the term of payment of their shares before mentioned without issue, the said trustees shall (but only upon the termination of the liferent of the second party in the event of her being the survivor) convey and make over the estate and effects hereby conveyed by the first party to himself or such person or persons as he may have directed by will or other writing under his hand, which failing to his own nearest heirs such heirs to be ascertained as at the time of the succession opening to them."
Colonel Lamont Campbell died on 27th January 1893, without issue, and without having exercised the power of disposal reserved to him under the marriage-contract. He was survived by his wife, who died in 1937, without ever having re-married.
Upon Mrs Lamont Campbell's death the marriage-contract estate fell to be made over to Colonel Lamont Campbell's own "nearest heirs," and a question arose as to the persons entitled as "nearest heirs" within the meaning of the marriage-contract to share in the estate, and, in particular, as to whether Colonel Lamont Campbell's nearest heirs fell to be ascertained as at his own death in 1893 or as at his widow's death in 1937. A further question, which is not the subject of this report, also arose, as to whether a sum received by the marriage-contract trustees in respect of a share of the proceeds of the lands of Robroyston fell to be distributed as heritable or as moveable estate of Colonel Lamont Campbell.
A special case was presented, in 1941, for the opinion and judgment of the Court. The sole trustee acting under the marriage-contract was thefirst party; Colonel Lamont Campbell's surviving sister and the testamentary representative of a deceased sister, who died in 1940, were the second parties; and the executor and the universal legatory of his brother, John Henry Lamont, who died in 1929, were the third parties.
The contentions of the parties upon the question here reported were stated as follows:"The first party submits no contention. The second parties maintain that, on a sound construction of the marriage-contract, the nearest heirs of Colonel Lamont Campbell, to whom the marriage-contract estate fell to be paid on his widow's death, fell to be ascertained as at that date, and that they, being or representing such heirs, are entitled equally between them to the whole of the said estate The third parties maintain that, on a sound construction of the marriage-contract, the nearest heirs of Colonel Lamont Campbell, to whom in the circumstances the marriage-contract estate fell to be paid on his widow's death, are his heirs as ascertained at the date of his own death."
The questions of law included:"(1) Do Colonel Lamont Campbell's nearest heirs, within the meaning of his antenuptial contract of marriage, fall to be ascertained(a) as at his death? or (b) as at his widow's death?"
The case was heard before the Second Division, consisting of Lord Mackay, Lord Wark, and Lord Russell, on 10th and 11th June 1941.
At advising on 8th July 1941,
LORD MACKAY.The apparently simple questions stated in this
special case arise from the terms of an antenuptial marriage-contract between spouses who married in the year 1882. It was contemplated that both spouses should provide, in the hands of the trustees they appointed, certain means and estate or funds or rights and interests, the purpose of this inter vivos trust being, as is usual in antenuptial marriage-contracts, principally for the provision of the spouses in their survivance, and for possible children. It so happened that Mrs Margaret Huison Lamont (afterwards Lamont Campbell) in fact during the subsistence of the marriage did not in terms of the intention convey any estate, but her husband, then Celestine Norman Lamont, conveyed and made over to the trustees, as at 19th April 1882, rights of his thus described: "[His] whole right and interest in and to the means and estate heritable and moveable conveyed by or falling under the trust-disposition and settlement" of his father, Archibald James Lamont of Lamont, "dated 3rd August 1847 and relative codicils and particularly but without prejudice to the said generality [his] whole right and interest in and to the lands and estate of Robroyston in the county of Lanark." These lands belonged to his father, Archibald James Lamont of Lamont. His father had, by mortis causa deed, which is printed in the Appendix, granted and disponed to and in favour of a number of trustees, and to the survivor of them, and to the heirs of the last survivor "all and whole my lands and heritable estate of every description that shall belong to me at the time of my death as also my whole moveable means and estate of whatever kind and denomination heirship moveables included that shall belong...
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...1 Anderson's Trustees v. Forrest, 1917 S. C. 321;Murray's Trustees WattsSC, 1939 S. C. 382;Campbell's Trustee v. Lamont's ExecutorSC, 1941 S. C. 564. 2 G.'s Trustees v. G.SC, 1937 S. C. 141;Murray's Trustees v. WattsSC, 1939 S. C. 1 4 F. 205. 1 1944 S.C. 466. 2 4 F 205. 3 24 D. 589, at p. 5......