Devlin's Trustees v Breen
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Thankerton,Lord Wright,Lord Macmillan,Lord Porter |
| Judgment Date | 25 January 1945 |
| Judgment citation (vLex) | [1945] UKHL J0125-2 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 25 January 1945 |
[1945] UKHL J0125-2
House of Lords
Lord Chancellor
Lord Thankerton
Lord Macmillan
Lord Porter
Lord Simonds
After hearing Counsel as well on Monday the 11th, as on Tuesday the 12th, days of December last, upon the Petition and Appeal of Mrs. Elizabeth Darney Devlin or Breen, wife of and residing with James Francis Breen, at 76 Pilrig Street, Edinburgh, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 13th of July 1943, so far as therein stated to be appealed against, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Thomas Leishman Devlin, Adair Gilmour Devlin, Margaret Grace Eileen Devlin, Robert Darney Devlin, Patricia Elizabeth Darney Devlin and John Smith Wells, C.A., now curator bonis to the said Patricia Elizabeth Darney Devlin, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 13th day of July 1943, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the Respondents, the said Thomas Leishman Devlin, Adair Gilmour Devlin, Margaret Grace Eileen Devlin, Robert Darney Devlin, Patricia Elizabeth Darney Devlin and John Smith Wells, the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments; And it is further Ordered, that the Costs of the Respondents, the said Mrs. Elizabeth Darnley Devlin or Breen and James Francis Breen the Trustees presently acting under the Trust Disposition and Settlement and Codicil of the late Mrs. Grace Cochrane Darney or Devlin, be paid out of the fund in medio, such last-mentioned Costs to be taxed as between solicitor and client, and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
After hearing and considering the able arguments on either side addressed to this House by Mr. Clyde and the Solicitor General for Scotland respectively, and re-examining the authorities to which they referred, I had already formed the view that the bequest in debate attracted the rule of construction known in Scotland as conditio si sine liberis institutus decesserit. But before completing a written opinion of my own, I had the advantage of reading that prepared by my noble and learned friend Lord Macmillan which I gratefully adopt in preference to attempting an independent pronouncement. I move that the Appeal be dismissed.
My Lords,
This Appeal raises a question as to the proper construction of the residuary purpose of the last trust disposition and settlement, dated 5th July, 1937, of Mrs. Grace Cochrane Darney or Devlin, who died on 8th December, 1941. The testatrix also left a codicil dated 13th April, 1938, the terms of which are not material to the present question.
The testatrix was the widow of Thomas Leishman Devlin, who died in 1919. There were two sons and a daughter of the marriage: (1) Robert, who died in 1926, survived by issue, who have no claim under the residuary purpose, (2) Thomas, who died in June, 1941—six months before the death of the testatrix, leaving five children, who are the first named Respondents in this Appeal, and (3) the Appellant, Mrs. Elizabeth Darney Devlin or Breen.
By the residuary purpose of the trust disposition and settlement, under which her whole estate was conveyed to the trustees, the testatrix directed as follows, "(Fourth) As soon as convenient after my death my trustees shall realise the rest, residue and remainder of my said estates and effects, and shall divide the proceeds thereof equally between my two children the said Elizabeth Darney Devlin or Breen and Thomas Leishman Devlin or the survivor."
The main question in this Appeal is whether the conditio si sine liberis applies in favour of the first-named Respondents, and thus qualifies the gift over to the Appellant on survivance of her brother Thomas. The Lord Ordinary, Lord Robertson, held that the conditio did not apply, but a majority of the Judges of the Second Division held that the conditio did apply, and reversed the Lord Ordinary's decision. Lord Mackay dissented on the ground that there were certain averments of the present Appellant, which she was entitled to have remitted to proof; the majority of the Court held that these averments were irrelevant. I propose to deal with this subsidiary question first.
In both Courts below, the present Appellant asked for proof of certain averments in condescendence 2 of her claim. These related to (1) the terms of her father's trust disposition and settlement, with a view to showing that he had made full and adequate provision for the children of the marriage, (2) the terms of prior settlements executed by the testatrix, which were all revoked, and (3) certain statements averred to have been made by the testatrix on several occasions after the death of her son Thomas that in terms of her will her daughter—the Appellant—would now receive the whole of the residue of her estate. The Lord Ordinary found it unnecessary to consider the relevancy of these averments. The Second Division unanimously held that the averments under the third head were irrelevant and should not be remitted to probation, and that decision was not challenged before this House. As regards the other two heads, I am of opinion that the view of the majority of the Second Division is correct, and that these averments are irrelevant, and should not be remitted to probation; indeed, I should be prepared to reject them on the ground of incompetency as well.
But, first, it is important to lay down clearly that the application of the conditio is a rule of construction arising in the case of a limited class of will, and that it is not a presumption of law, rebuttable by evidence, though it may be said to be founded on certain presumptions. It is sufficient to refer to the unanimous opinion of the nine consulted Judges, which included some of the most eminent Judges, in the whole court case of Hall v. Hall (1891) 18 R. 690, at p. 698. A certain looseness of language is to be found in some of the decisions, which is apt to lead to confused thinking, which, with all respect to the learned Judge, would have appeared to have affected the mind and language of Lord Mackay. The only cases to which the learned Judge refers are the cases of McLachlan v. Seton's Trustees, 1937 S.C. 206, and Curries Trustees v. Collier, 1939 S.C. 247. These appear to have been two instances of ambiguity as to the subject matter of a testamentary bequest or as to the identity of the beneficiaries, of which there can be no question in the present case, and I find it unnecessary to consider whether, even in such cases, it is legitimate to look at prior testamentary writings, which have been revoked. No other authority has been cited in support of the Appellant's contention. The terms of such revoked writings appear to me to be valueless as evidence, unless one was able to be informed as to the reasons which led to their revocation, and, from that point of view, the oral statements by the testatrix might have been informative, but the Appellant—advisedly, as I conceive—no longer maintains the relevancy or competency of these oral statements. The averments as to the father's settlement are even more irrelevant and incompetent. I therefore agree with the majority of the learned Judges in rejecting these contentions.
Although we are here concerned with a bequest to a direct descendant, where there can be no question such as arises in the case of a bequest to a collateral as to whether the testator has placed himself in loco parentis, it does not seem likely that any wider range of enquiry would be legitimate, in view of the statement by Lord President Inglis in Bogie's Trustees v. Christie (1882) 9 R. 453, at p. 456, namely, "But it is necessary to consider what is meant by placing themselves in loco parentis. It does not mean that the uncle has during his life occupied such a position, or treated his nephews and nieces with that kindness which a parent would show to his children; what is meant is, that in his settlement he has placed himself in a position like that of a parent towards the legatees—that is to say, that he has made a settlement in their favour similar to what a parent might have been presumed to make." It is difficult in that view to find any warrant for going outside the terms of the operative testamentary writings to examine prior testamentary writings, which are revoked and inoperative; but I reserve any final opinion thereon.
On the main question the Lord Ordinary, while stating that in its general...
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