Trs. v. Hunter

6, 1894

she might receive from the Bombay Civil Fund, and as to the restriction of the annuity to £500 in the event of the failure of that fund.

The provision payable to James Hunter's widow from the Bombay Civil Fund at the date of his death being £300 a-year, William Frederick Hunter continued to pay her £300 a-year from the estate of Hafton from that date until his own death in 1880. Thereafter William Frederick Hunter's trustees continued to pay James Hunter's widow £300 from the Hafton estate in the belief that she continued to receive £300 a year from the Bombay Civil Fund.

In 1882 the Bombay Civil Fund was by Act of Parliament 45 and 46 Vict. cap. 45 transferred to the Government of India, and under this Act widows of civil servants received their annuities from the revenues of India "with the additional benefit in the case of widows of a pension of £60 per annum, such additional benefit to take effect as from the 1st of April 1882." Under the provisions of this Act James Hunter's widow from 1st April 1882 was in receipt of the pension of £60 thereby granted in addition to the annuity of £300 formerly received by her from the said fund, and to the annuity of £300 paid her by William Frederick Hunter's trustees from the Hafton estate. She all along received and expended the whole of the said annuities and pension in bona fide, and without knowing that there was or could be any doubt of her right to receive the whole, although amounting together to more than £600.

The fact of Mrs James Hunter being in receipt of this additional £60 having come to the knowledge of William Frederick Hunter's trustees, certain questions arose for the decision of which a special case was presented to the Court by (1) the trustees of William Frederick Hunter, and (2) the widow of James Hunter.

The questions at law were-"(1) Is the second party entitled to receive from the first parties an annuity of £300 per annum in addition to her annuity and pension of £360 from the Indian Government as in place of the Bombay Civil Fund? Or (2) Is the second party entitled to receive in each year from the first parties only such a sum as will together with the said annuity and pension of £360 give her a total annuity of not more than £600? (3) In the event of the second question being answered in the affirmative, is the second party bound to repay to the first parties the sums received by her in excess of £600 per annum; and if so, is she liable for interest on such overpayments and at what rate?"

At advising—

LORD JUSTICE-CLERK - The late James Hunter bound himself by his antenuptial contract of marriage to pay or allow to be retained from his salary as an Indian Civil servant the contribution necessary to secure the usual annuity to his widow from the Bombay Civil Fund, and he undertook, if

his widow should not get the benefit of the fund through his failure, that she should receive an annuity of £300 after his death. He did secure the Bombay Civil Service Fund annuity to her by contribution, and on his death she became entitled to it. He succeeded to the estate of Hafton shortly after his marriage, and executed a settlement by which he provided to his widow an annuity of £300 a-year over and above what she was entitled to under the marriage-contract, expressing it to be his intention that she should have a free income of £600 under the contract and the settlement, any annuity coming from the Bombay Fund to be imputed to account of it. There was a subsequent declaration that if the Bombay Fund annuity should fail, then £500 a-year only was to be paid out of his

estate.

On James' death without issue he was succeeded in the estate by his brother William to whom he directed his trustees to convey the residue of his means and estate. William on making up his title as heir of provision in special executed a bond of annuity, by which he bound himself to pay to his brother's widow the annuity of £600 a-year, under the same conditions as to the imputing to the annuity what she might receive from the Bombay Fund, and the restriction to £500 in the event of failure of that fund.

Accordingly from that time forward the widow received £300 a-year under the bond of annuity. At first the Bombay Fund yielded only £300 a-year, but the fund having been taken over by the Government of India, widows' annuities were from April 1882 increased by £60. Of this William's trustees were ignorant, and accordingly the widow has been receiving £660 annually since that date.

fact

In these circumstances the first question is, whether the widow is entitled still to receive £300 under William's obligation? I am of opinion that she is not. The intention of her husband in his settlement is, I think, clearly expressed to be that she shall have a free annuity of £600, and that any annuity she might receive from the Bombay Fund was to be imputed to account of the £600. The Bombay Fund annuity took full effect from his having fulfilled his obligation to pay the contributions necessary, the annuity at that time was £300 a-year, and therefore to make up £600 an additional £300 was necessary, but the intention being definitely and in terms expressed that he desires her to receive £600, and that what comes from the Bombay Fund is to be imputed to that sum, she cannot in my opinion have right to more than £600, and is not in a position to decline to have any part of what comes from the fund imputed towards the £600. I therefore propose that the first question should be answered in the negative, and as following upon that, to answer the second question in the affirmative.

The third question is, whether the widow is bound to refund to the trustees the sum of £60 for each year during which she has received the additional £60 from

the Bombay Fund, it being held that only the difference between £360 and £600 should have been paid to her? According to the special case the sum was paid to her in good faith, and received by her in good faith, and we must deal with the matter upon that footing. I have felt that there is much difficulty as to how this question should be answered, but have ultimately come to be of opinion that in the circumstances it may be answered in the negative. The trustees were in error in making the payment, but it must be held to have been an error of view as to the widow's legal right, on a question of construction of documents, the view they took being one for which much may be forcibly urged. And the widow was entitled to assume that she was paid only what she was entitled to. It is equitable therefore that she should not be called upon to repay the amount.

LORD YOUNG - I think there is a great deal to be said for the plea of the widow that she is entitled under her husband's settlement to £600 a-year without reference to the pension of £60 given by statute in addition to the annuity previously given to her from the Bombay Civil Fund of £300. The husband's settlement directs that his trustees should pay his widow an annuity of £300 per annum in addition to what she was entitled to under her marriage-contract, i.e., £300 from the Bombay Civil Fund, and if he continued his connection with that fund, then she would get the annuity of £300 from this estate along with the annuity of £300 from the Bombay Civil Fund.

In his settlement, however, he provided for what he thought might be the case that he should cease his connection with the Bombay Civil Fund, and in that event he binds himself to give her £300 per annum out of his estate. Under that marriagecontract she is entitled to all that the Bombay Civil Fund gives her, but then if it gives her nothing she is still entitled to £300 per annum from her husband's estate. By a recent statute there is given a pension of £60 per annum to widows of Civil servants in addition to the £300 annuity from the Bombay Civil Fund, and the question raised by this case is, whether the declaration in her husband's settlement that she is to have a clear annuity of £600 per annum included all that she got from the fund?

Two views have been put before us on that question, the one view being that if from the annuity and pension together she receives a sum of £360 per annum from the Bombay Fund, then that sum is to be imputed to the whole annuity of £600. The other view is that the pension of £60 is to be altogether disregarded, and only the original annuity of £300 is to be taken as part of the clear annuity of £600. There is a good deal to be said for that latter view, which is that of the widow, but upon the whole I have come to the conclusion that the other view is the sound one, and that the obligation upon the estate is simply to make up her annual income to £600, so that

July 6, 1894.

if she receives £60 more from the Bombay Civil Fund the contribution from her husband's estate will be so much less.

It is not at all a clear case, but I think she is only entitled to receive £240 from the estate just now. If anything should happen which would diminish the amount paid by the Bombay Civil Fund, then her claim against the estate for £300 would revive.

Then there is this other question, whether it is the duty of the trustees to recover, and of the widow to repay, this £60 per annum which she has received and spent for many years. I am of opinion that there is no such duty. It is said-and I see no reason to doubt it-that both the trustees and the widow acted in ignorance of their true position, and without making any inquiry. Į think that all concerned acted in good faith, and I have come to the conclusion that the reasonable view is that the widow is entitled to receive £240 from the estate for the future without making any deduc tion in respect of over-payments in the past. I think that the case falls within an equitable rule or principle, that of property received and consumed in good faith. Any other rule might lead to great hardship, even absolute ruin. I do not say that it would here. But the hardship and the possible ruin which might result from requir ing repayment from one who has received property to which he was not entitled, and has consumed it in good faith, is the foundation of the equitable rule or doctrine.

LORD RUTHERFURD CLARK concurred.

LORD TRAYNER-The leading question to be here decided is, what is the amount which Mrs James Hunter is entitled to claim annually under the provisions in her favour contained in her marriage-contract and in her deceased husband's deed of settlement? There is no doubt as to the nature of her right under the marriagecontract. Under it she is entitled to the annuity or other benefits payable to her as her husband's widow out of the Bombay Civil Fund, or in the event of such annuity or benefits being lost to her from whatever cause, then, in lieu thereof, to a sum of £300 a year out of her husband's estate. By his deed of settlement Mr Hunter directed his trustees to make payment to his widow of an annuity of £300 per annum, in addition to what she was entitled to under her contract of marriage, but adding these words"My intention being that the said Mrs Katherine Christina Meiklejohn or Hunter should she survive me, shall have a free annuity of £600 under said marriage-contract and these presents, any annuity she may receive from the Bombay Civil Fund being imputed to account thereof." It is contended for Mrs Hunter that under this provision in her husband's settlement she is entitled to an annual payment of £300 in addition to the sum received by her from the Bombay Civil Fund, whatever that sum may be. This contention appears to me to be distinctly at variance with the expressed will of the truster. It is clearly stated to be his desire and intention that his widow

Trs, v. Hunter

6, 1894

should have an annual income of £600 under the combined provisions of the marriage-contract and the trust-settlement, and it is just as clearly stated that whatever benefit Mrs Hunter may receive from the Bombay Civil Fund is to be imputed as part of that annual income. The amount payable to Mrs Hunter by her husband's trustees out of Mr Hunter's estate is just so much and no more as, in addition to the sum received by her from the fund, will make up a sum of £600 per annum. I think this result is necessarily reached from a consideration of the provisions of the settlement to which I have referred.

Had this result been in any decree doubtful, I think the doubt would have been removed by a consideration of what Mr Hunter has done by way of provision for his wife in the event (which has not happened) of her losing the benefit of the fund. In that event he has provided that she shall receive out of his estate an annuity of £500 "to which sum her annuity under said marriagecontract and these presents shall in that event be restricted." This is inconsistent with the idea that under the settlement Mrs Hunter was provided with an annuity of £300 absolutely, that is, irrespective of any benefit received by her from the fund, for if so, then the husband's restriction of her right would have been unavailing. If Mr Hunter under his settlement gave his widow absolutely an annuity of £300, then she is entitled to that in any case. But if the benefit of the fund ceased from any cause, then by the marriage-contract, in lieu of such benefit, Mr Hunter bound himself to make payment to his widow of £300 a-year. Accordingly, on the cessation of the benefit from the fund there would be due to Mrs Hunter in respect of her husband's marriage-contract obligation £300 per annum, which with the £300 absolutely hers under the settlement would give her an annuity of £600, although Mr Hunter expressly provides that on the cessation of the benefit from the fund his estate is only to be burdened in favour of his widow to the extent of £500. As he could not restrict his obligation under the marriage-contract it is plain that he intended the burden on his estate to depend on whether his widow received any benefit from the fund, and the amount, if any, which she so received. In short, as I have already said, Mr Hunter desired that his widow should have an income of £600 a-year, to consist (1) of whatever annuity or benefit she might receive from the fund, and (2) so much but no more from his estate as added to the amount received from the fund would make up the £600. I am therefore of opinion that the first question should be answered in the negative, and the second question in the affirmative.

The third question presents more difficulty. In regard to it I assume that the trustees paid Mrs Hunter £300 a-year irrespective of what she was receiving from the fund, in the view that this was her right under the deed of settlement. Although I think that view erroneous, I cannot say that the trustees were in any

way to blame for so construing that deed. It was a view that might very reasonably be entertained. In these circumstances, as both the trustees and Mrs Hunter were in error as to the legal effect of the settlement, I think there is no claim for repetition of what has been already paid to Mrs Hunter. I would therefore answer the third question in the negative.

The Court answered the first question in the negative, the second in the affirmative, and the third in the negative.

Counsel for First Parties-W. Campbell. Agents-Skene, Edwards, & Garson, W.S. Counsel for Second Party Clyde. Agents-Stuart & Stuart, W.S.

Tuesday, July 17.

SECOND DIVISION. BURNIE'S TRUSTEE v. LAWRIE. Succession · Testament PresumptionHolograph Writ-Unsigned Holograph Postscript to Signed Holograph Testament Held Valid.

An unsigned holograph postscript to a signed holograph disposition and settlement held (dub. Lord Rutherfurd Clark) to be valid and effectual. Hugh Burnie died at Wigtown on 3rd December 1893. After his death there were found in the deceased's house two holograph testamentary writings. The first was in the following terms "In the event of my death without heirs of my body, I leave and bequeath to Christina Shaw or Lawrie, wife of Sampson Lawrie, tailor, Liverpool, the property in Whithorn, belonging to her late brother James Shaw, Whithorn, together with the railway stock in my name, of Portpatrick and Wigtownshire Joint Committee, with a legacy of £10 sterling for dividends drawn. As witness my hand at Wigtown the 22nd day of November 1893 years. — (Signed) HUGH BURNIE." The second was a holograph trust-disposition and settlement in the following terms "I, Hugh Burnie, residing in Agnew Crescent, Wigtown, in order to settle my affairs, Do hereby give, grant, assign, and dispone to and in favour of John Smith, Sheriff-Clerk of Wigtownshire, and Charles Arbuthnot M'Lean, lawagent, Wigtown, all and sundry lands and heritages, goods and gear, debts and sums of money, that shall belong to me at the time of my death, and 1 nominate and appoint the said John Smith and Charles Arbuthnot M'Lean my sole executors, and I declare the purposes of the trust to be(first) for payment of my just and lawful debts, deathbed and funeral expenses; (second) for payment of following specific legacies to persons after named-To Margaret Thompson, daughter of Margaret Thompson, sometime in Culkae, £20 sterling; to Janet M'Culloch, Sorbie, £10 ster

ling; to John M'Keachie, Wigtown, and his mother, £20 sterling between them to; John M'Adam, son of the late William M'Adam, Clendrie, £20 sterling; to Mrs Heron, Glasgow, and Mrs Bryan, Monreith, £10 sterling each; to Mrs Broadfoot, Drough-dool, the body clothes and silver plate in house belonging to my late mother; and as both my mother and self were much benefited by the inhabitants of Wigtown, the rest residue of our joint means and estate to be divided as follows-eight-tenths to the poor of the parish of Wigtown, onetenth to the poor of the parish of Kirkinner, and one-tenth to the poor of the parish of Glasserton, said sums to be divided at the discretion of my said trustees; witness my hand at Wigtown, the 30th day of November 1893 years.-(Signed) HUGH BURNIE. I have left special instructions respecting Mrs Sampsons Lawrie's legacy, and would like trinkets disposed of as follows to following kind friends if they will accept -Gold watch and chain to the Rev. Mr Paton; nickel watch to Miss Callie, Monreith Village; Shakespeare's Plays and all old china, crystal, and glass to Mr C. A. M'Lean; gold and diamond scarf ring to Mr Howatson, Barness; gold studs and walking stick, Malacca cane, to Mr David M'Kenna, Malzie; aneroid barometer to Mr Russell, Balsier; whatever books he may choose to Mr Russell, Knockann; gold brooch of my mother to Miss Jorie, Whithorn."

Besides the heritable property in Whithorn (worth about £70) and the railway stock (worth about £11) referred to in the holograph writing of 22nd November, the said Hugh Burnie died possessed of the following estate-1, Other heritable property in Whithorn, valued at £350; 2, leasehold property in the village of Monreith, which may be worth about £50; 3, personal estate, consisting of cash in house, money in bank, stock-in-trade, book debts, and household furniture, amounting in gross to about £840.

John Smith declined to accept the offices of trustee and executor under the trustdisposition of 30th November 1893, but Charles Arbuthnot M'Lean accepted office as trustee and executor.

In these circumstances questions arose with regard to the distribution of the deceased's estate in consequence of the existence of the various holograph writings above referred to. Mr M'Lean maintained that the holograph writing of 22nd November was invalid and inoperative, and conferred no rights upon Mrs Lawrie in the heritable property and railway stock thereby bequeathed to her, on the ground that that deed must be held as impliedly revoked by the later trust-disposition and settlement of 30th November 1893. He also maintained that the holograph writing appended to the said trust-disposition and settlement was invalid and inoperative, in respect that it was undated and unsigned by Hugh Burnie.

Mrs Lawrie, on the other hand, maintained that the said holograph writing of 22nd November had not been revoked, but

must receive effect, and that she, by virtue of the bequests contained in it, had right to the said heritable property in Whithorn and the said railway stock. Mrs Lawrie, the Rev. Robert Paton, and the other persons mentioned in the holograph writing appended to the holograph settlement, further maintained that this holograph writing, although unsigned, was valid and effectual, and that they were in right of the bequests therein specified.

For the decision of these questions a special case was presented to the Court by (1) Mr M Lean, (2) Mrs Lawrie, and (3) the Rev. Robert Paton and the other persons mentioned in the unsigned holograph writing appended to the holograph settle

ment.

The questions at law were-“(1) Is the said holograph writing of 22nd November 1893 valid to the effect of entitling the said second party to the bequests thereby made by the said Hugh Burnie in her favour, or, on the other hand, has the said holograph writing of 22nd November 1893 been impliedly revoked by the said trust-disposition and settlement of the said Hugh Burnie dated 30th November 1893? (2) Are the bequests in favour of the third parties contained in the said holograph writing ap pended to the said trust-disposition and settlement of 30th November 1893 valid or invalid?"

Argued for first party-The postcript to the trust-disposition and settlement being unsigned was invalid and inoperative, and could not receive effect-Pettigrew's Trustees v. Pettigrew, December 6, 1884, 12 R. 249; Goldie v. Sneddon, November 4, 1885, 13 R. 138; Skinner v. Forbes, November 13, 1883, 11 R. 88, Lord President's opinion, p. 90; Dunlop v. Dunlop, June 11, 1829, 1 D. 912. If the unsigned postcript was invalid, then the legacies therein could not receive effect, and the earlier deed must be held to be impliedly revoked by the trust-disposition and settlement, even although there was no express revocation of the former in the latter-Brander's Trustees v. Anderson, July 19, 1883, 10 R. 1258.

Argued for the second and third parties -The unsigned addendum was valid and effectual. It was written unico contextu with the main writing, and was thus connected with a formal, regular, and complete deed--Stair, iv. 42, 6; Bell's Lectures on Conveyancing, i. 82; Gillespie v. Donaldson, December 22, 1831, 10 S. 174; Spiers v. Home Speirs, July 19, 1879, 6 R. 1359. small bequests contained in the addendum were therefore valid, and the deed of 22nd November had not been revoked by the testator.

At advising

The

LORD YOUNG-Both of the questions in the present case depend on whether the postcript to the holograph disposition and settlement of 30th November is valid, or whether it is invalid because it does not bear the subscription of the testator. If it is valid it signifies to us quite distinctly no intention on the part of the testator to

Trs. v. Lawrie

17, 1894

revoke his settlement of 22nd November by his settlement of 30th November, but if the postcript is invalid, it may be that the first settlement is impliedly revoked by the second.

It is maintained by the first party, founding on a passage in Štair, and on the case of Skinner v. Forbes and other cases, that the postcript is invalid because it is not signed. The passage in Stair is in these terms "Holograph writs subscribed are unquestionably the strongest probation by writ and least irritable. But if they be not subscribed they are understood to be incomplete acts from which the party hath resiled."

Now, I am not at all disposed to dissent from the law there laid down, and which has been acted on and recognised by Divisions of the Court. But assuming the law to be as stated in Stair, is it applicable to the case before us? I think as an ordinary rule a holograph will with no signature would be held by us to be an incomplete act from which the party had resiled. But the settlement with which we are dealing is subscribed, and that being so, the question is, whether the rule applies to a writing upon it in the handwriting of the testator, whether at the top, or on the margin, or at the end of it. It is not a question as to the validity of an unsubscribed holograph will, but as to the validity of a holograph writing upon a subscribed holograph will explanatory of its contents. I do not think a case of that kind necessarily falls within the rule as stated by Stair. Whether we should give effect to a writing appended, or prefixed to, or on the margin of, or indorsed upon a holograph will may depend on circumstances, but I do not think that there is any formality compelling us to reject it. The rule laid down by Stair is not a rule of formality or technicality; it is one founded upon considerations of good sense, for it is plain to the human understanding that a mere unsigned jotting by a person of how property is to be disposed of, is not a complete writing. But is that consideration at all applicable to an explanatory note prefixed, or subjoined to, on the margin of, or indorsed upon a holograph will? Suppose it is explanatory of whom he means to refer to. Or suppose it be a description of the subject of a legacy. I do not think that would fall within the rule as an inchoate incomplete writing. It is quite complete, explanatory of what is meant, identifying either the donee or the subject of the gift. I give that merely as an illustration of what would not fall within the rule of law stated by Stair. Here the writing is explanatory of his having left special instructions respecting Mrs Sampson Lawrie's legacy. I think these words indicate quite distinctly that he did not mean to imply a revocation of that legacy. I think that does not fall within the rule that an unsigned testament is an incomplete writ. I therefore hold it to be good altogether, and therefore it must have effect not only to that extent, but as regards the Shakespeare's Plays and the trinkets as there referred to.

My opinion on the whole matter is that the first question ought to be answered to the effect that the will in favour of Mrs Lawrie is not impliedly, as it certainly is not expressly, revoked by the codicil, the conclusion that the testator had no such intention being arrived at from the note in the testator's own handwriting.

As regards the second question, I think that the writing is also effectual as regards the legacies. If it is effectual in part, it must be effectual altogether.

LORD RUTHERFURD CLARK-I am very glad that Lord Young has reached the conclusion he has expressed, and with which I understand your Lordship in the chair agrees. I do not think I should say

more.

FIRST DIVISIO N.

SOUTAR v. CARRIE.

Parent and Child-Custody of Child-Payment to Person Deprived of the Custody -Custody of Children Act 1891, sec. 2.

The Custody of Children Act 1891, by section 2, provides that "if at the time of the application for an order for the production of the child, the child is being brought up by another person... the court may order that the parent shall pay to such person the whole of the costs properly incurred in bringing up the child, or such portion thereof as shall seem to the court to be just and reasonable."

A father sought to have his father-inlaw, in whose house his infant child had been living for five years, ordained to deliver up said child. The grandfather submitted that he was only bound to do so upon payment of £85, which he alleged he had expended upon the child. He was, however, unable to furnish details of the outlay of this money. The petitioner offered to pay £15 in monthly instalments of 5s.

The Court, upon the ground that the respondent had failed to show why more than £15 should be paid, granted the prayer of the petition.

The Custody of Children Act 1891 (54 and