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assumption that he survived, he had consented to this trust coming into operation during his life. The element of reciprocity mentioned by Mr. MʻLaren does not seem to enter largely into the decision.
It would also seem that the case of Hogg v. Campbell, which is again cited by Mr. MʻLaren, hardly authorizes the statement that what he calls “reciprocity” in a mutual settlement by strangers in favour of each other makes the settlement irrevocable by one of the parties without the consent of the other. There was a difference of opinion among the Judges as to whether the express words of agreement (a different thing from reciprocity) would have prevented either of the brothers from revoking during their joint lives, and the really decisive circumstance was, as we have pointed out, the death of one brother without having made any alteration. Finally, Mr. M'Laren says that “reciprocity” makes a mutual settlement binding in certain cases in questions with creditors; and his authority is the well-known Shewchan case (1 Sh. App. 320). It
It so happened that the entail in that case was a mutual contract and entail between the husband and father-in-law, proceeding on the narrative that certain parties had not entered into a matrimonial contract upon marriage, that neither party had got any suitable marriage provision, that the wife was not properly secured in a jointure, and that there was no settlement on the issue of the marriage. It would be difficult to find a more onerous deed; and the Lord Chancellor describes it as “not a mere mutual entail, but proceeding likewise on money considerations” (p. 356). The decision was that the substitute heirs acquired a personal right to the estate which was made real by infeftment, and therefore it was incompetent to attach the estate of the entailer (who was also institute) for his personal debts contracted subsequent to the date of the entail and not made real prior to infeftment. Altogether the decision seems to belong to the law of entail, or settlement, not of mutual settlement. It was the right of the heirs, not that of the entailer, which prevailed against the creditors.
The revocation of mutual settlement was considered by the Second Division of the Court in the recent case of Craich's Trustees v. Mackie (24th June 1870, 8 Macph. 898). In that case two sisters, and the husband of one of them, conveyed their whole estates to trustees, the surviving granter to be executor until his death, for ultimate division among the children of the marriage. The deed reserved gave and granted "to us and each of us and the survivor of us, the whole estate hereby disponed by us, and also reserving to us full power during our lives, or even on deathbed, to burden, as also to alter, innovate, or revoke these presents.” The husband died first, and the two sisters attempted by a codicil to deprive one of the children of his provision. On the construction of this deed, Lord Justice-Clerk Moncreiff held that the reservation of estate meant simply that the survivor reserved, as regards his own estate, and the predeceasers gave as regarded their shares, the power of enjoying and disposing of the estate subject to the ultimate destination. He also held that the power to alter must be exercised collectively. “Where there is a mutual settlement under which each party gives and receives an onerous consideration, the deed usually becomes irrevocable after the death of any of the parties to it. It is not always so indeed, as whether it can be revoked by the consent of survivors depends on the interests created by the deed. Nay, in some cases the deed is not revocable by the consent of all the granters, as, for instance, where a jus crediti is conferred on third parties. As a general rule, however, none of the granters can revoke without the consent of the others, and where one dies the settlement becomes final. That, however, applies only to the case of remuneratory deeds. The deceased must have had an interest in maintaining the deed to render it irrevocable on his death." And so much stress did his Lordship lay on the relationship between the predeceasing granter and the ultimate grantees, that he expressed an opinion that the result might have been different had the aunt, or unmarried sister, died first, and a revocation had been attempted by the husband and wife. Lord Cowan adds that the deed contained a clause of absolute warrandice, which is never found in a deed intended to be revocable during the granter's life. Had the contract of parties, however, been one limited in duration to their joint lives, the clause of warrandice might still have been intelligible. The decision seems to proceed on much the same ground as Kidd's Trustees. The subject is further illustrated by two recent judgments of the First Division. In Davidson & Others (27th May 1870, 8 Macph. 807), a mutual testament executed by a husband and wife provided (1.) that the survivor should possess and inherit all the property that might belong to them at the death of the predeceased ; (2.) that on the death of the survivor the residue of all that was left by the deceased should go equally to the daughter and granddaughter of the wife by a former marriage. The wife survived her husband and also the daughter and granddaughter, the latter surviving the husband. The deed was silent as to revocation. The Lord President pointed out that the first clause was in itself a complete mutual settlement, “ the survivor taking the absolute fee of the entire estate of the spouses, the fee of his or her portion of the estate remaining in, and that of the predeceaser transmitting to, the survivor.” Effect was therefore given to a second will executed by the surviving wife, whereby the representatives of the daughter and granddaughter were excluded. The judgment did not proceed to any extent on the circumstance that the substituted persons predeceased the survivor. Lord Deas guards against the supposition that, where, as in that case, the survivor takes a fee, revocation is necessarily competent even as regards the survivor's separate estate. “In every such case we must look to the particular deed to see what was the intention of parties, the presumption always being that beyond the spouses and
their issue, it is not meant to confer a jus quæsitum on any one, and that any further destination is revocable, either onerously or gratuitously. If the contrary is intended, the intention must be made clear.” As Lord Glenlee said, in the case of Gentles, which we have mentioned already : “A party may undoubtedly give legacies to strangers in a contract, and where it is clear that they are not in lieu of other stipulations, they would be revocable as in a separate deed." Lord Deas also admits that effect will be given to a condition stipulated for by the predeceased as a counterpart to something he himself undertook, either absolutely or in the event of survivance. All the Judges thought that the husband in Davidson's case had no such interest in the relatives of his wife as to prevent revocation, and that there was no evidence of a stipulation by the husband that the wife should not alter the provision in favour of her own relatives. The only contract, if any, was that the survivor should take everything; and therefore no question could properly be raised as to the power of the survivor to revoke. We find the same principles in the judgment of the First Division in Traquair v. Martin (1st November 1872, 11 Macph. 22). By mutual settlement, proceeding on a narrative of mutual affection, each of two sisters conveyed her estates, heritable and movable, to the other in liferent in case she should survive, and to a nephew in fee, “reserving full power to us at any time during our joint lives to alter, innovate, and revoke these presents, in whole or in part, as we may see proper.” The surviving sister enjoyed the liferent of her sister's estate, but was nevertheless found entitled after her sister's death to recall the destination of her own estate. Dealing with the plea that on the first death the nephew acquired a vested right to the survivor's, as well as the predeceaser's estate, the Lord President said: “It is beyond dispute that two persons may so contract by mutual settlement as to bind one another in the way contended for. Such a deed puts the survivor in a very peculiar and unenviable position. But if they contract in such terms as to leave no doubt of their meaning, there is nothing illegal in such a contract, and the Court will give effect to it. The Court, however, will not readily presume from ambiguous words such a very unusual and extraordinary intention.” His Lordship also remarked that there was no express exclusion of the power of revocation of each sister in regard to her own estate.
Our object in this paper has been to show that the law relating to the revocation, or alteration, by a survivor of a mutual settlement has sometimes been too broadly stated. We take “mutuality" to mean nothing more than this, that similar provisions are made on each side. It is not clear that in this sense a mutual settlement by spouses, the interests of children not being involved, is inherently irrevocable either during the joint lives or after the first death. The introduction of a clause reserving a joint power to revoke extinguishes whatever separate power of revocation might otherwise bave existed. But such a clause, at least in its usual terms, does not import a restriction on the survivor's rights. Its proper object is to render it matter of contract, that (except of mutual consent, an exception which attaches to every contract) the deed shall come into operation on the first death. To bind a survivor you must have either an express agreement, or a special interest in the predeceaser to have no alteration made on the testamentary arrangements of the survivor. It may no doubt be said that every case of mutual settlement, as well as every case of post-nuptial contract, presents a question of intention; and that little good can result from attempting to fix a technical meaning on clauses which can never be more than one element in the interpretation of a testator's will. But this freedom of interpretation itself makes it desirable to fix, as far as possible, a clear and definite sense for phrases which the conveyancer is constantly putting in the testator's mouth.
The Roman Dutch law on this subject was illustrated in the case of Denyssen v. Mostert on appeal from the Supreme Court in the colony of the Cape of Good Hope (L. R. P. C. App. iv. p. 25+). Sir R. Collier there says, that “mutual wills, notwithstanding their form, are to be read as separate wills, the dispositions of each spouse being treated as applicable to his or her half of the joint property,” i.e. the communion of goods, “ that each is at liberty to revoke his or her part of the will during the co-testator's lifetime, with or without communication with the co-testator, and after the co-testator's death.” The leading exception to this rule is stated by Grotius, ii. 15, 9: “When the spouse who dies first has bequeathed any benefit in favour of the survivor, and has afterwards limited the disposal of the property in general after the death of such survivor, then such survivor, if he accepts such benefits, may not afterwards dispose of his or her share by last will in any manner at variance with the will of the deceased." The acceptance of benefits goes by the name of “adiation;" and in the leading illustration given in the Hollandsche Consultatien, the property is given to the wife for life, with remainder on her death, if she should survive and die unmarried, to the blood relatives of both spouses in certain proportions. It is not sufficient that the property has been massed for the purpose of joint-disposition, unless the survivor takes a benefit. But as the survivor generally takes a benefit under a mutual settlement, the exception must be an extensive
Peckius in his Treatise de Testamentis Conjugum, lib. i. c. 43, goes beyond this, and denies the power of revocation to a spouse who has consented to a disposition of the joint property. But this is repudiated by Huber (Prælectiones, 28, 3, 4), and the general view seems to be, that in the absence of adiation there is no quasi-contract not to revoke, and a gift over of the joint property to children is not less revocable than a gift to other relatives or to strangers (see Voet, De Pactis Dotalibus, 28, 4, 63). It is clear that the equitable considerations which suggest that the surviving spouse ought to be held to have elected during the joint lives, would equally apply to the power of separate revocation without communication which is admitted to exist during the joint lives.
SHERIFF HALLARD ON THE LAW AND LEGISLATION
OF THE YEAR. [We extract the principal passages from the address delivered by Sheriff Hallard at the opening of the Sheriff Court of Midlothian on the 6th of October:-)
I purpose, as usual, to pass in review before you some leading decisions pronounced by our Supreme Court since we last met in similar circumstances. Also I shall point out to you in the legislation of last session some matters interesting to us as Scotch lawyers. In brief, and within these limits, I am going to speak to you of the law and the legislation of the past year.
These are like two streams running side by side through the same land.
Too small is the segment of each presented for our examination in the course of any one year to base an opinion as to the general direction of either. I have assimilated them to streams; yet, as you are aware, they do not flow under the same conditions. Here the judge declares law; there the legislator makes law. We know that case law, bound though it be by precedent, and therefore in principle unprogressive, is by the force of things urged onwards, moving under the pressure of ever-growing new interests and new relations. Our statute law, on the other hand, so far as jurisprudence is concerned, is committed to the guidance of eminent lawyers; and I do not think I slander the profession when I say that our habits of thought are conservative. I point out this retarding influence in the progress of our statute law, just as I have pointed out an accelerating influence in the progress of our case law. And so I return to my simile of the two parallel streams. You will remember how rivers usually appear on the maps ; not like the unswerving lines of latitude and longitude which no obstacle can turn aside, but in irregular wavy lines, which look like caprice, and may be due to impassable barriers sown by the hand of nature at various points of their course. The general direction of the stream from the mountain to the sea shows the inexorable law of progress: the wavy line shows the deflecting, retarding, and sometimes even retrogressive influence of individual volition and particular circumstance. In this figure, which is capable of many other applications, you will have before you no unfair symbol of the progress of law and legislation during the last and many previous years.
So much by way of introduction. I address myself now to the particular task which I have undertaken.