McLachlan v Seton's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 15 January 1937 |
| Docket Number | No. 17. |
| Date | 15 January 1937 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Russell.
SuccessionLegaciesCumulative or substitutionalRevocationTestatrix irrevocably binding herself to bequeath certain sumSum bequeathed by codicilCodicil delivered to beneficiariesSubsequent will revoking prior testamentary writings and repeating bequest of same sumWhether beneficiaries entitled to one or to two legacies.
In 1911, Mrs S., by a codicil to her will of 1909, bequeathed the sum of 6000 equally among three beneficiaries, two of whom were relatives of her deceased husband. The bequest had been made under duress, and, in return for it and on delivery to them of the codicil, the beneficiaries undertook, in writing, not to call in question the good faith of Mrs S.'s husband in connexion with his management, as trustee, of their father's estate.
In 1914, 1919, 1926, 1928 and 1935, Mrs S. executed fresh wills, each containing a general clause of revocation and a repetition of the 6000 bequest in the same terms, with the exception that, in her will of 1926 and in the subsequent wills, she directed that all legacies were to be paid free of Government duty; and, further, in her will of 1935 she directed that certain legacies, including the one in question, were not to carry interest.
In an action brought by the three beneficiaries against Mrs S.'s testamentary trustees, the pursuers maintained that Mrs S. had no power to revoke the codicil or the bequest, and that, accordingly, they were entitled to payment of the legacy under the codicil of 1911 as well as to the legacy under the 1935 will.
Held (diss. Lord Mackay), (1) that there was a general rule that, where legacies of similar amounts are bequeathed by separate testamentary writings, each legacy is payable, unless it can be shown from the terms of the deeds, or by other competent evidence, that the testator's intention was to make only one bequest; (2) that, where the question was whether the legacies were cumulative or substitutional, the Court was entitled to consider the history of the bequests so as to arrive at the testator's intention; (3) that in the present case, while the testatrix had irrevocably bound herself in 1911 to bequeath 6000 to the pursuers, she was entitled to revoke the 1911 codicil and to substitute a similar bequest in a later testamentary; and (4) that she had effectually done so in the wills of 1914, 1919, 1926, 1928 and 1935, there being nothing in the terms of the deeds or otherwise to indicate a contrary intention.
On 8th April 1936 Mrs Mary M'Lardy or M'Lachlan, Seton M'Lardy and Mrs Jessie.M'Lardy or Ingram brought an action in the Court of Session against the testamentary trustees of the late Mrs Eliza Jessie Kyd or Seton, acting under her trust-disposition dated 10th January 1935 and relative codicil dated 9th October 1935, concluding "(1) For declarator that the pursuers are entitled equally among them to (first) a legacy of Six thousand pounds under and in virtue of a codicil granted by the said Mrs Eliza Jessie Kyd or Seton on Thirteenth January Nineteen hundred and eleven; and (second) a legacy of Six thousand six hundred and sixty-six pounds thirteen shillings and fourpence under and in virtue of the third purpose of the said trust-disposition and settlement [of 1935]; and (2) For payment of Five thousand four hundred pounds and Six thousand pounds (being the said sums of Six thousand pounds and Six thousand six hundred and sixty-six pounds thirteen shillings and fourpence, under deduction of legacy duty)," with interest upon both sums from the death of the testatrix until payment.
The circumstances of the case as disclosed by the averments of parties, so far as relevant to this report, were as follows, viz.:(Cond. 1) "The pursuers are the three children of the late Hugh M'Lardy of Howrah, Calcutta, who died on or about 16th July 1868. Mrs M'Lachlan was a child of his second marriage. Mr Seton M'Lardy and Mrs Ingram were the children of his third marriage with Mrs Jane Seton or Grant, who survived him." (Cond. 2) "The defenders are the trustees nominated by and acting under the trust-disposition and settlement of the late Mrs Eliza Jessie Kyd or Seton (who died on 25th October 1935), dated 10th January, and, with relative codicil dated 9th October, registered in the Books of Council and Session on 5th November, all in the year 1935.1 The said Mrs Seton was the widow of Charles Seton,
who was a brother of the said Mrs Jane Seton or Grant or M'Lardy." (Cond. 3) "On 13th January 1911 the said Mrs Seton in the circumstances hereinafter set forth executed a valid and effective document, bearing to be a codicil to a former trust-disposition and settlement executed by her on 27th January 1909, by which she bequeathed a legacy of 6000 to the pursuers and the survivors and survivor of them. The said document was delivered on 18th January 1911 to the pursuers' agents, Messrs Nisbet, Mathison & Oliphant, W.S., Edinburgh, for custody on behalf of the pursuers, and was irrevocable. With reference to the averments in answer it is admitted under reference to the succeeding articles of the condescendence that Mrs Seton executed the said document in pursuance of an agreement to that effect. " (Ans. 3) "Admitted that on 13th January 1911 the said Mrs Seton in pursuance of an agreement to that effect executed a codicil to her former trust-disposition and settlement which had been executed on 27th January 1909 by which codicil she bequeathed the sum of 6000 to the pursuers and the survivors and survivor of them. Admitted that the said codicil was delivered. The extract produced is referred to for its terms. Quoad ultra denied." (Cond. 4) "By the third purpose of her said trust-disposition and settlement of 1935 the said Mrs Seton bequeathed, inter alia,to the pursuers and the survivors and survivor of them a further legacy of 6000 free of legacy duty. This legacy is of the pecuniary
value of 6666, 13s. 4d. (legacy duty at the highest rate of 10 per cent being exigible in respect of each of the pursuers). She also provided that in the event (which has not happened) of there not Seton's being funds sufficient to pay certain legacies (including the said legacy of 6666, 13s. 4d.) in full no interest should be payable upon, inter alia, this further legacy. No such provisions as to legacy duty or interest are contained in the said codicil of 1911, or are applicable to the said first legacy of 6000. With reference to the explanations and averments in answer, the pursuers have no knowledge of the existence or terms of any other trust-dispositions and settlements. Quoad ultra denied under reference to the said trust-disposition and settlement of 1935 for its terms so far as not coinciding herewith. Esto that the said Mrs Seton executed any other trust-dispositions and settlements, these did not become operative and did not, in any event, effect revocation of the codicil of 1911. (Ans. 4) "Admitted that by the third purpose of the said trust-disposition and settlement of 1935 the said Mrs Seton bequeathed the sum of 6000 to the pursuers and survivors and survivor of them. Explained that all the legacies in said third purpose are declared to be free of legacy duty, and that it is declared no interest is to run on the legacies. The deeds mentioned are referred to for their terms.Quoad ultra, under reference to the said deeds the averments of the pursuers are denied. The said trust-disposition and settlement expressly revokes all prior testamentary writings. Explained further that the codicil of 1911 was revoked by the said Mrs Seton by a trust-disposition and settlement executed by her on 23rd February 1914, which settlement made provision for the pursuers, and the survivors and survivor of them, to the extent of 6000. The said Mrs Seton thereafter executed several settlements, each of which revoked prior testamentary writings and each of which repeated, in substantially the same terms, the bequest of 6000 contained in the codicil of 13th January 1911, the only change being that by a, trust-disposition and settlement of 14th May 1926 the testatrix for the first time directed that the said sum should be paid free of legacy duty, a direction which she continued in subsequent settlements." (Cond. 6) "The circumstances in which the said document of 1911 was executed and delivered are as follows. By his last will and testament dated 27th June 1868 (a copy of which is produced herewith), the said Hugh M'Lardy conveyed his whole estate for the purposes therein set forth to the following persons as trustees, viz., William M'Lardy, his brother, his said widow, and the said Charles Seton, his widow's brother. His brother declined office; his widow was unable to act as she was in England and the estate was almost entirely in India; and the said Charles Seton proved the last will in the High Court of Judicature at Fort-William, Bengal, on 13th August 1868, and entered upon the administration of the estate by himself." (Cond. 7) "Subject to an annuity of Rs. 3000 (325 at 2s. 2d. per rupee) to the said Mrs Jane Seton or Grant or M'Lardy so long as she remained his widow, the whole residue of the estate of the said Hugh M'Lardy was left for the benefit of the pursuers in manner specified in the said last will. Said residue amounted to at least 30,000. Mrs M'Lardy, in addition to said annuity, was entitled to the liferent of Rs. 100,000 under the antenuptial contract of marriage after referred to." (Cond. 8) "The principal assets of the trust-estate were the businesses formerly carried on by the said Hugh M'Lardy, which included an iron foundry and an oil and screw factory. These businesses were earning good profits in 1868, and the trustees were by the said will specially empowered to carry them on at their discretion. Under the administration of the said Charles Seton, within a few years the trust-estate was reduced to bankruptcy, and its assets were only sufficient to pay its...
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