Hay v Duthie's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 13 July 1956 |
| Docket Number | No. 49. |
| Date | 13 July 1956 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Migdale.
Succession—Will—Construction—"Children"—Whether adopted child included—Evidence—Competency—Evidence of intention—Latent ambiguity—Whether "children" ambiguous—Adoption Act, 1950 (14 Geo. VI, cap. 26), sec. 15 (2).
The Adoption Act, 1950, re-enacting a provision of the Adoption of Children (Scotland) Act, 1930, enacts by section 15 (2) that "the expressions “child,”“children,” and “issue,” where used in relation to any person in any disposition, shall not, unless the contrary intention appears, include a person or persons adopted by that person."
A testator who had been thrice married directed his trustees to divide the residue of his estate equally among his surviving children. He was survived by four children who were issue of his marriages, and by an adopted child, whom he had adopted before executing his will. She was an illegitimate child, born to his second wife before he married her, and he was not the father of the child. His will contained no indication as to whether he intended the adopted child to share in the bequest or not. In an action for payment of a share of the residue, in which she maintained that she was a child of the testator within the meaning of the language used by him in his will, the adopted child made detailed averments to the effect that the testator had always regarded and spoken of her as one of his children, had brought her up with the issue of his marriages without drawing any distinction between her and them, and had persuaded her to give up her rights in her mother's estate on the ground that he would make provision for her in his own will.
Held (1) that sec. 15 (2) did not by its reference to ldquo;intention" create an exception to the ordinary rules restricting the admission of extrinsic evidence in the construction of testamentary writings, (2) that there was no latent ambiguity, warranting the admission of extrinsic evidence, in the testator's use of the word "children," because that word primarily meant lawful issue only, and because sec. 15 (2) excluded adopted children from that primary meaning, (3) that accordingly (rev judgment of Lord Migdale) the pursuer's averments were irrelevant, and (4) that the issue of the testator's marriages were alone entitled to the bequest.
George Flett Duthie died on 9th February 1953, leaving a trust-disposition and settlement dated 14th May 1943 by which he directed his trustees on the death of his second wife, or on his own death should she predecease him, to "realise the whole residue of my means and estate, and to divide same equally among all my then surviving children."
The testator had been thrice married. He had two children by his first marriage, two children by his second marriage, and none by his third marriage. He married his second wife on 6th September 1928. She already had an illegitimate daughter, May Reid Duthie (later Hay), born on 6th June 1925, of whom the testator was not the father but whom he formally adopted on 9th May 1941. The second wife died on 10th November 1947. The testator was survived by the issue of his marriages, his adopted child, and his third wife.
Thereafter the testator's adopted child brought an action against his trustees (first defenders) and, for their interest, the issue of his marriages and his third wife (second defenders) for declarator that she was entitled to a one-fifth part of the residue of the testator's estate, and for an accounting.
The pursuer averred, inter alia:—(Cond. 4) "…after her mother's said marriage [to the testator] the pursuer lived with her mother's parents, Mr and Mrs May, at 19 Duke Street, Fraserburgh, until the outbreak of the last war. Thereafter she lived in the testator's house at 19 North Street, Fraserburgh. The pursuer and Mr and Mrs May were wholly supported by the testator, and the pursuer was at all times treated by the testator as a member of his family. With reference to the defender's averments in answer, admitted that Mrs May occasionally stayed at 19 North Street…Explained that the part of 19 North Street in which the pursuer lived was not an establishment separate from that in which the testator's natural children lived, and the second-named of the second defenders occupied a room above the pursuer in it. The fourth-named of the second defenders shared a room with the pursuer for long periods." (Cond. 5) "…At the [time of the adoption] the pursuer assumed the testator's surname at his request. The testator explained to the pursuer at the time of the adoption that both the adoption and the change of surname were necessary in order to enable the pursuer to take as one of the testator's children under a will which he was then making." (Cond. 6) "On 10th November 1947 the pursuer's mother died intestate leaving estate to the approximate value of £5000. The testator was appointed executor-dative to the pursuer's mother." (Cond. 7) "The testator never distributed the pursuer's mother's estate but retained and used it all for his own purposes. The testator stated at the time of the pursuer's mother's death that his intention was to retain and use for his own purposes her whole estate. He also represented that the pursuer and the other children of the pursuer's mother would receive their share in her estate when he died, as he had made a will conferring equal benefits in his estate on all his children, including the pursuer. The pursuer has never received any share of her mother's estate. In reliance on these representations the pursuer along with the other children of the pursuer's mother at the testator's request signed receipts in respect of their alleged shares of her mother's estate. These receipts were retained by the testator. No difference was made between the pursuer and the legitimate issue of her mother. It is believed and averred that the testator acted as he did because he believed that the pursuer was entitled to share in the distribution of her mother's estate along with her mother's other children…" (Cond. 8) "The pursuer was always regarded and treated by the testator as one of his own children. He habitually referred to her as such, and frequently said that her relationship to him was the same as that of any of the second defenders. He drew no distinction between the pursuer and the second defenders in his treatment of her, and he demonstrated feelings of affection for her in numerous ways. In particular, he gave the pursuer, and all his natural children, a present of £5 every New Year. He provided rent-free accommodation for the pursuer and his natural children without making any distinction between her and them. The first-named of the second defenders was thus accommodated at 83 Saltoun Place, Fraserburgh, and the second-named of the second defenders was thus accommodated at 19 North Street…After the pursuer's marriage in 1944 the testator provided her and her husband with rent-free accommodation in his own house, and kept them supplied with fish, eggs and butter until the pursuer and her family emigrated to Australia in April 1952. The testator was then much agitated on account of her departure and, at the time of her departure from this country, stated at the railway station in Fraserburgh that in case of need he would pay the pursuer's passage home, and that in the event of his own death she was provided for under his will. He also then gave the pursuer a present of £200, and gifts of rugs and clothing. After the pursuer reached Australia she continued to receive gifts from the testator, who said that he would visit her there when he retired from business." (Cond. 9) "…The [testator's] trust-disposition and settlement was prepared by other solicitors than those who carried through the adoption proceedings. The pursuer believes and avers that said solicitors who prepared said trust-disposition and settlement were unaware that the pursuer had been adopted by the testator and was not a natural legitimate child of the testator. It is believed and averred that said solicitors prepared said trust-disposition and settlement in the mistaken belief that the pursuer bore the same relationship to the testator as did the first, second, third and fourth-named of the second defenders."
The pursuer pleaded, inter alia:—"(1) The pursuer being a child of the testator within the meaning of the language used by him in his said trust-disposition and settlement, and being thereby entitled to a one-fifth part of the residue of his estate, decree of declarator should be pronounced in terms of the first conclusion of the summons."
The first and second defenders pleaded, inter alia:—"(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (2) The pursuer's averments in article 8 of the condescendence, being in any event irrelevant, should not be remitted to probation."
On 31st March 1956, after a Debate Roll discussion, the Lord Ordinary (Migdale) allowed a proof before answer.
At advising on 13th July 1956,—
LORD PRESIDENT (Clyde).—This case raises an interesting question as to whether an adopted child is entitled to participate in the residue of a testator's estate under a settlement whereby he directed his trustees to divide his residue on the death of his wife, or on his own death should she predecease him, equally among all his then surviving children.
The testator was thrice married. He had two children by his first wife. He married his second wife in September 1028. She had then an illegitimate child, aged 3 years. The testator was not the father of this child. The testator had two children by his second wife. On 9th May 1941 the illegitimate child was formally adopted by the testator. Two years later, on 14th May 1943, the testator signed his testamentary settlement. His second wife died in 1947 and he married again. He died on 9th February 1953, survived by his third wife, by whom he...
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Salvesen's Trustees, Petitioners
...expressions which might otherwise give rise to difficulty. Subsection (2) was directed to the point decided in Hay v. Duthie's TrsSC. 1956 S.C. 511 about the effect of sec. 15 (2) of the Adoption Act 1950. That subsection provided that the expressions "child", "children" and "issue" in rela......