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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Peter Robb and Another (Robb's Trustee) v. Thomas Robb [1872] ScotLR 9_454 (14 May 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0454.html Cite as: [1872] SLR 9_454, [1872] ScotLR 9_454 |
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Page: 454↓
A holograph deed, bequeathing heritable subjects, and containing a nomination of trustees, though without any conveyance of the subjects to them, or statement of their powers and duties, held to be a valid mortis causa settlement of the said subjects, and to confer a title to sue for the same on the persons named as trustees.
The late James Robb, who was a grocer in Dundee, left a writing which purported to bequeath eight houses which belonged to him to his grandsons, and a certain other tenement to an adopted daughter in liferent, and the trustees of a Wesleyan Chapel in fee. The writing also contained the words, “My wish is, that Peter Robb be one trustee and Alexander Smith be the other.” Mr Robb died in March 1871, intestate as to his moveable estate, to which his only son, Thomas, obtained himself decerned executor-dative qua nearest of kin.
Peter Robb and Smith, as trustees under this writing, sued Thomas, as his father's heir-at-law, and other defenders, who did not appear, to have it found and declared, inter alia, that the writing constituted a valid and effectual conveyance of the heritable subjects therein mentioned, and that the heir-at-law was bound to make up a title to these subjects and convey them to the pursuers for the purposes of the trust. There were also conclusions in the summons relating to the rents of the properties, and other matters depending on the decision of the main question.
Thomas Robb defended the action, on the ground, first, that the pursuers had no title to sue, because the writing, even if it constituted a valid conveyance of the subjects, must be treated as creating certain specific bequests which could only be sued for by the beneficiaries themselves. He further denied that the writing was holograph, and averred that it was not expressive of the true and final intention of the granter, but was handed to his agent in order that a will might afterwards be written out, for which, however, instructions were never given.
The Lord Ordinary ( Gifford) allowed a proof, which was taken on 23d November last. His Lordship thereupon pronounced an interlocutor, inter alia, repelling the defender's objection to the pursuers' title to sue, and finding in favour of the writing as a holograph mortis causa settlement of the whole subjects.
The defender reclaimed.
Scott and J. P. B. Robertson for him.
Crichton and R. V. Campbell, for the respondents, were not called on.
The Court adhered.
Their Lordships held that the defender had not made any averment which ought to have been remitted to probation except his denial of the writing being holograph; and that having been satisfactorily established, it must receive effect. On the objection taken to the title to sue, they were of opinion that the settlement constituted a valid conveyance of the heritable subjects under the titles to Land Act, 1868, sect. 20, to the persons named as trustees, for the purposes of the trust. If the objection were good, it would follow that the trustees could not have defended an action of reduction. However slight the duties of the trust might be, it was sufficient to give a title to sue.
Solicitors: Agent for Pursuers— James Young, S.S.C.
Agent for Defenders— D. F. Bridgeford, S.S.C.
