Stevenson's Trustees v Stevenson
| Jurisdiction | Scotland |
| Judgment Date | 24 June 1932 |
| Docket Number | No. 77. |
| Date | 24 June 1932 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Mackay.
SuccessionTestamentRevocationConditio si testator sine liberis decesseritSubsequent birth of issueChallenge of willTitle to sueChallenge at instance of others than the post-natus.
Held (rev. judgment of Lord Mackay) that the right to challenge a will on the ground that a child has been born to the testator subsequent to the date of the will is personal to the child so born, and that a stranger has no title to challenge.
Smith's Trustees v. GrantUNK, (1897) 35 S. L. R. 129,approved and followed.
William Stevenson, Prestwick, died on 12th August 1930, leaving a trust-disposition and settlement dated 15th February 1928.
The testator was married three times, and was survived by his third wife, Mrs Margaret Wright or Orr or Stevenson, to whom he was married on 14th December 1927. He was also survived by his grandsons William and David Stevenson, the SODS of Alexander Stevenson, his eldest son by his first marriage, who had predeceased him; by Mrs Macnaughton, Mrs Gibb, and Mrs Terrace, his daughters by his first marriage; by Andrew M'Kechnie M'Farlane Stevenson, a son by his second marriage; and by William Stevenson (second), a son by his third marriage, who was born on 14th November 1928, some nine months after the date of the settlement.
By his settlement the testator directed his trustees to pay to his eldest son, Alexander, (who, as already stated, predeceased him) 50; to each of his daughters 50; to his sister, Mrs Wright, 50; and to his widow 1250; and to make over the balance of residue to his son Andrew.
The value of the testator's moveable estate was approximately 600, and of his heritable estate 4350.
Questions having arisen as to whether the settlement was still operative in view of the birth after its date of William (second), the trustees brought an action of multiplepoinding and exoneration.
An administrative claim was lodged for the trustees, and claims were also lodged for Mrs Macnaughton, Mrs Gibb, and Mrs Terrace, for Mrs Wright, for Mrs Stevenson, for William and David Stevenson, and for Andrew Stevenson. No claim was lodged for William (second), his tutrix (his mother) having assigned his rights to Andrew for 200, a larger sum than William (second) would have received on intestacy. Andrew Stevenson, Mrs Wright, and Mrs Stevenson maintained that William (second) alone had a title to challenge the settlement, and that, as he had not claimed in the process, the settlement remained operative. William and David Stevenson and Mrs Macnaughton and others maintained that the settlement was revoked by the birth of William (second).
On 3rd March 1932 the Lord Ordinary (Mackay) found that the settlement had been revoked by the birth of William Stevenson (second), and that the deceased William Stevenson died intestate; and adjudicated on the claims in conformity with these findings.
At advising on 24th June 1932,
LORD JUSTICE-CLERK (Alness).The facts which give rise to the problem in this case are few and simple. They are as follows. The testator, the late William Stevenson, died on 12th August 1930. He left a settlement dated 15th February 1928. The testator married three times, and there was issue of each marriage. A son of the third marriage was born on 14th November 1928. The testator's widow, the mother of the child last referred to, after the death of her husband assigned the child's whole right and interest in the estate of the testator for 200. In the event of the testator's settlement being held to be inoperative, the child would receive 126, 19s., or thereby, from his father's estate.
In these circumstances an action of multiplepoinding has been raised by the testator's accepting trustees, as pursuers and real raisers, for the purpose of obtaining a judicial determination of the question whether the settlement was revoked, in virtue of the conditio si testator sine liberis
decesserit, by the birth of a child of his marriage after the date of the deed. All parties interested in the determination of that question are claimants in the process. The pursuers and real raisers and certain claimants who have an interest under the settlement maintain its validity; the heirs-at-law maintain its invalidity. The child, on whose birth subsequent to the date of the settlement the issue turns, is not present or represented in the processIn order to answer the question which I have formulated, a preliminary question, which may be thus expressed, falls to be put and answered, viz.: Can a stranger challenge the validity of a will, basing his challenge on the doctrine of the conditio? That is what the heirs-at-law seek to do in this case.
I have always understood that the doctrine of the conditio was founded on equity, and that it operated for the amelioration of the hardship created to a post-natus by reason of the provisions of a settlement which was executed before his birth and which did not contemplate his existence. The theory underlying the doctrine, I apprehend, is that the testator would not have made the will which he did had he contemplated the subsequent birth of issue. Prima facie, then, the right of challenge would seem to reside in the person for whose benefit the doctrine was introduced, viz., thepost-natus.
That view would seem to be strengthened by the fact that, in the long history of our law, no case is recorded in which a stranger has been allowed to plead the conditio. Indeed there is, so far as I know, apart from the cases presently to be cited, no record of such an attempt having been made. In every other case where a decision relating to the conditio was given, the child was a party relying on theconditio. We are now invited, for the first time, to affirm that a challenge based on the conditio is open to a stranger. If we do so, we should, in my judgment, not bring About such an equitable result as the doctrine envisages; we should rather employ the doctrine as an engine of injustice, to produce a result which is inequitable in the, last degree.
But one is not remitted to mere inferences to be drawn from the origin of the doctrine, or from the absence of authority for the claim now made by the heirs-at-law. As it so happens, there is clear and definite authority against that claim. The most recent case is Smith's TrusteesUNK,1 a decision by Lord Stormonth Darling when sitting in the Outer House. In the course of his opinion his Lordship says: "But here it [i.e., the challenge] is made by the heir of the child, and Mrs Grant's preliminary plea is that the right of challenge is personal to the child, and that no representative has any right to maintain it. This plea is founded mainly on the case ofWatt v. JervieUNK, (1760) M. 6401, referred to with approbation by Lord Newton and Lord Pitmilly in Colquhoun v. Campbell, 7 S. 709, and cited by Lord M'Laren (Wills and Succession, p. 404) as an authority for the proposition that the right of challenge is personal. I am not aware that the case ofWatt has ever been overruled, and I am of opinion that it is conclusive in favour of Mrs Grant's plea." Lord
Stormonth Darling, in accordance with these views, rejected the claim made by the heir of the child. With these views I desire to express my humble concurrence, and also with the grounds on which they are based. The case affords a definite decision on the point now in issue; the judgment of Lord Stormonth Darling was not reclaimed against; and I cannot find that, in the later authorities, a single word has been said against its soundnessAn examination of the two earlier cases cited by Lord Stormonth Darling discloses valuable support for his judgment. It may be true that neitherWatt v. JervieUNK1 norColquhoun2 can be claimed as an express decision on the point, but in the course of the opinions delivered in these cases there are obiter dicta of the first importance. For example, in the recorded opinion of the Court in Watt v. JervieUNK1 this passage occurs: "Supposing an intention to alter in that case, yet this supposed intention could not have the effect to void the settlement ipso jure. It could only have the effect to privilege the child in equity, to bring a reduction of the settlement; and as this was never attempted, the settlement must stand good." It is true that, as the learned Dean of Faculty pointed out, the passage cited is not the decision of the Court, but is an ingredient in that decision. None the less the language is definite and clear, and, it must be remembered, expresses the considered view of the whole Court. That view, so far as I am aware, has remained unchallenged for well nigh two centuries.
Again, the limitation of such a claim as this to the disappointedpost-natus is clearly recognised by the Lord Ordinary (Lord Newton) in Colquhoun,2 when he says (at p. 711): "The benefit of such an implication has rather been considered as an equitable remedy confined to the children themselvesand to those cases where, from the circumstances, it is natural to presume that the father had no wish to disappoint them. Accordingly, in the case Watt againstJarveyUNK1 [sic], the benefit was denied to collateral...
To continue reading
Request your trial
-
The Roman and Civilian origins of the conditio si testator sine liberis decesserit in Scots Law
...Lord Curriehill v Currie's Exrs (1624) Mor 2937. Traditionally such a child is known as a post natus44E.g. Stevenson's Trs v Stevenson 1932 SC 657 at 669 and 670 per Lord Ormidale and at 674 in the interlocutor of the Court; C de B Murray, Law of Wills (1945) 52. and this is known as a cond......