Scottish Court of Session Decisions

Lord Adam.—I do not think that the law applicable to the case is doubtful. It is, I think, that when a child is born, there arises a presumption that a settlement previously executed by the parent is thereby revoked, but that this is a presumption of law, and may be rebutted by facts, admitted or proved, shewing that the testator understood or intended, nevertheless, that the settlement should receive effect. It appears to me, therefore, that the question we have to consider in this case is, whether the facts disclosed are sufficient to rebut the presumption. Now, these facts may occur either before or after the birth of the child. In this case, seeing that the mother died three days after the birth, the facts founded on are all antecedent.

Now, it appears from the case that Mrs Stuart-Gordon was entitled under her father's will to a sum of £4000, and that the fee of this sum was settled by a deed of trust on the children of the marriage between her and Mr Stuart-Gordon, subject to their respective liferents.

It further appears that, under the will of an aunt, Mrs Smith, Mrs Stuart-Gordon was entitled to the income of a sum of £10,000, the fee of which was in like manner settled on her children.

It further appears that the sum which Mrs Stuart-Gordon had to dispose of, and which was affected by the settlement, amounted to £8016, 10s. What she had done by her settlement was this—she had bequeathed certain pecuniary legacies to relations and friends and to the vestry of St Andrew's Church, Aberdeen, amounting in the aggregate to £1013.

She had directed her trustees to deliver to the daughters of Mrs Hay or Foster certain jewels valued at £7, 11s. 6d., which she had received from her deceased aunt, Lady Hay, who was their grandmother, and finally she had bequeathed the whole residue and remainder of her estate to her husband.

This was the position of matters which Mrs Stuart-Gordon had to consider when she found herself pregnant.

Now, it is clear, I think, that at an early period of her pregnancy she had her mind directed to her succession, in the event of a child being born.

Then, with reference to an illness from which she seems to have been suffering, she wrote on 10th May 1897 to a friend, Mrs Ferrier, “I cannot make out what it can be, but shall likely know on Wednesday when the doctor comes back. It is either change of life, or a baby, I think now, but I shall let you know. If it is that I may as well make all my plans sure, and make my will. I should not survive it, I am sure.”

It is also clear that she remained in the apprehensive and anxious frame of mind, which she there expressed, during the whole period of her pregnancy.

Such being her frame of mind on 2d September she wrote to her agent Mr M'Kinnon that she was anxious to see him on a matter of business. The matter of business on which she desired to see him related to her settlement. It appears that when making the settlement she had arranged with her agent to make out a list of the jewels she had got from Lady Hay, and had bequeathed by the third purpose of the settlement to Mrs Foster's daughters and to docquet it as relative to the settlement.

This she had omitted to do, and she now desired to repair the omission.

She accordingly saw her agent, and gave him a list of the jewels, to which he appended a docquet in these terms,—“The foregoing is a list of Lady Hay's jewels referred to in my deed of settlement of date 9th October 1895.” She signed this docquet and returned it to Mr M'Kinnon about 15th September, not much more than two months before the child was born.

This appears to me to be a very significant proceeding. It is clear that she had had under consideration the terms of the settlement she had made, and if in view of her condition and the expected birth of a child she had desired to make any change in its terms, surely this was her opportunity. She, however, not only expresses no such, desire, but so far as I can see, she could have had no other object in view in making out and docqueting the list of jewels, than to facilitate the duty of her trustees in carrying out the third purpose of the settlement, by which she had bequeathed them to Mrs Foster's daughters, so that they might be able to distinguish them from the other jewels in her possession, and which were otherwise bequeathed. If this be so, then I think Mrs Stuart-Gordon must have understood and intended that the settlement was to have effect after her death.

If at this time Mrs Stuart-Gordon in the full knowledge that the birth of a child was more or less imminent, had executed a new settlement, I do not think that such a settlement would have been revoked by the subsequent birth of the child, because I think she must necessarily be considered to have had that contingency in view, when she made the settlement. It appears to me that what occurred in this case amounts to very much the same thing. I think that Mrs Stuart-Gordon, in the full knowledge of her condition, recognised and adopted her existing settlement as the settlement which was to regulate her succession. Nor does it appear to me that there was anything in the circumstances of the case that should make it improbable that she should do so. She knew that any child that might be born was largely provided for otherwise, and the great bulk of the money which she had to dispose of was bequeathed to her husband, the father of the child, in whom no doubt she had confidence that he would do what was right with it in the future.

On the whole matter, I am of opinion that the facts disclosed are sufficient to rebut the presumption of law, that the settlement was revoked by the birth of the child, and that accordingly the will and codicil are effectual and fall to be carried out by the trustees, and that the question should be answered accordingly.

Lord M'Laren.—One cannot but feel that the state of the law in regard to the doctrine of implied revocation of a will executed before the birth of children is unsatisfactory, as it leaves to the arbitrament of the Court a question which ought to be in the domain of positive law. The rule as it has been judicially interpreted leaves the conditions for determining its application in a very undefined and unsettled condition. At the same time it is probably better—I mean as representing the probable intention of a testator—that the rule should exist with its limitations, than that there should be no rule at all, which would have the effect (in the case of a will made by a man before marriage was contemplated) of disinheriting his subsequent issue in favour of collateral legatees. Now in order to be sure that one is on safe ground in a question of this kind, it is desirable to look shortly at the different categories into which the cases fall and their conditions, because the strength of the presumption varies very much according to the known conditions in each case. Perhaps the strongest case for the unqualified application of the doctrine of implied revocation is a will made before marriage; because, even supposing the maker knew that his issue were otherwise provided for, it is, in the absence of any reference to children in the will, most unlikely that he would intend his settlement to subsist after his marriage. But again in the case of a will made after marriage but before the birth of children, one would say there may be cases where the marriage had subsisted for years without expectation of issue, and if a child should afterwards be born and no opportunity had occurred for revising the will, I should think that would be regarded as a case very nearly in the same position as the case of a will made before marriage. But in the case of a will made by a man soon after his marriage and while there is nothing to make it unlikely that he should be looking forward to issue, he must be a very absent-minded man who would make a will under such circumstances and not provide for the possibility of issue being born of the marriage. That would be a case where it might be supposed that the testator was satisfied with the existing provisions in favour of his children and did not intend to leave them more. It must always be remembered that the foundation of the rule is a supposed inadvertence on the part of the testator, and that if a man gives the smallest sum to his children born or to be born that will absolutely exclude the doctrine of implied revocation. There was a case in this Court where a parent had daughters but no son, and where it was held that a son subsequently born was entitled to claim the estate. Whether the Court will go so far as to say that a will providing for all a man's existing children but omitting to deal with children to be born will be revoked by the birth of another child, I am unable to say, but probably in such a case it would be safe to adopt the formula of the Roman law and say, “Whatever child may be born to me hereafter I disinherit him.”

Now, the present case appears to me to fall nearest to the case of a will made after marriage and the birth of one child, because although no child had been born of this marriage and some years had elapsed without the expectation of issue, there can be no doubt that the lady was looking forward to the birth of a child. That had been the cause of much anxiety to her in consequence of her delicate state of health. I wish to guard myself against being supposed to proceed upon the view that a child in utero is to be considered in the same position as if already born, because we know on high authority that this is a rule which only exists for the purpose of enabling the child to take benefit by the will. But, what we are now considering is not whether the child is in utero or is born, because there is nothing given to the child. What we are considering is the state of the mind of the lady who made this will which is said to be revoked; and I cannot see any difference between the state of her mind and knowledge of the subject at the time when she came to consider her will and to add an inventory that was to make it complete and her state of mind after the birth of the child if she had survived. She was dealing with her estate at a time when she was in full knowledge that she would in all probability give birth to a child, and in these circumstances, and with the provisions of her will brought under her notice—for she was considering her will at the time—she made what was in itself a very unimportant addition to it, but which becomes very important with reference to its legal effect, because it amounts to a republication of the will as of the date when the addition was made to it. In short I think it must be taken as if the testatrix had reexecuted her will at the time when on the advice of her lawyer she signed an inventory relative to one of its provisions.

I agree with Lord Adam that this is a case where the operation of the rule is plainly excluded, and upon this ground—the double condition that the child was amply provided for in the knowledge of her mother, and that in the personal knowledge and expectation of the birth of a child, and having an opportunity of revising her will, she allowed it to stand unaltered.

Lord Kinnear.—I agree with Lord Adam.

The LORD PRESIDENT was absent.