Scottish Court of Session Decisions

This was an action of reduction of certain deeds brought at the instance of William Stiven, accountant in Dundee, factor loco absentis to James Young, against the trustees of James Brown and others. The questions which ultimately came before the Court were two, (1) Whether a mutual deed granted by a husband and wife had been revoked by a subsequent deed by the husband alone, and (2) whether the destination in a third deed imported substitution or conditional institution. The circumstances under which these questions arose were as follows.

James Brown senior, merchant in Dundee, purchased certain subjects in Couttie's Wynd, Dundee, and took the title to himself and his wife Isobel Maiden, in conjunct fee and liferent, for her liferent use allenarly. By mutual disposition and settlement, dated the 23d day of August 1821, executed by the said James Brown senior and Isobel Maiden, proceeding on the narrative that it being their duty in their own lifetime to settle their affairs in such a manner as to prevent all disputes after their death, they had resolved to grant said mutual disposition in manner therein under written: Therefore, and for other good and onerous causes, the said James Brown senior and Isobel Maiden gave, granted, assigned, and disponed to and in favour of the said Janet Brown, and Isobel or Isabella Brown, their daughters, equally between them, and the survivor of them, in liferent for their liferent use allenarly, and to their heirs in fee, all and whole the said subjects lying on the east side of Spalding's or Couttie's Wynd, in Dundee, being the subjects second described in the conclusions of the summons. The said mutual disposition and settlement contains a clause in the following terms:—“Reserving always to us during our joint lives our own liferent right and use of the premises, with full power to us at any period during our joint lives to alter, innovate, or revoke these presents in whole or in part, to sell, alienate, and dispone the subjects and effects hereby conveyed in any manner we may think proper; but, in as far as these presents shall not be altered or revoked, the same shall be valid and effectual though found lying in the custody of either of us at the time of the death of the longest liver, or in the custody of any other person at that time, dispensing with the delivery hereof,” After his wife's death, in 1825, the said James Brown, by a settlement executed on 29th July 1829, made a new and different disposition of the whole of the properties, heritable and moveable, belonging to him, which had formed the subject of the former settlement of 1821. In particular, he conveyed the said subjects in Couttie's Wynd to his daughters Janet (who had in the interval been married) and Isobel, equally between them, in liferent for their liferent use only, and to their respective lawful children equally among them, whom failing to the heirs and assignees of his said daughters in fee. On the said James Brown's death he was survived by five children, and among them by his daughters Isobel and Janet. The said Janet Brown or Young left five children, of whom James Young, to whom the pursuer had been appointed factor loco absentis, was the eldest son. The pursuer maintained that the mutual deed of 23d August 1821 was not revoked by the deed of 29th July 1826, and that under the former. Isobel Brown or Young had right to half the subjects in Couttie's Wynd therein conveyed to her and her sister, and that the said James Young, being the eldest son and heir of line and conquest to his mother was heir of provision to her under the said mutual disposition, and had right to the said one-half of the subjects.

Then, by disposition and settlement, dated 6th December 1831, the said James Brown senior, on the narrative of the love, favour, and affection which he had and bore to his sons and daughters thereinafter named, gave, granted assigned, and disponed to and in favour of his three sons, and Margaret Brown, Isobel Brown, and Janet Brown or Young, his daughters, equally among them, and the lawful issue of their bodies, and failing any of them by death without lawful issue of their bodies, to the survivors equally, their heirs and assignees, exclusive always of the jus mariti of any husbands, then present or future, of his said daughters, all and whole the subjects situated on the south side of the Cowgate of Dundee. Under this deed the pursuer maintained that the said James Young, as heir of provision to his mother, was in right of onefifth part of the said subjects in the Cowgate of Dundee.

It was inter alia pleaded for the defenders that “the pursuer was not entitled to insist in any of the conclusions of the action in so far as regarded one half pro indiviso of the subjects in Couttie's Wynd, in respect—(l)]That the settlement of 1821,

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on which that claim depends, was revoked and superseded by the settlement of 1829. (2) That by said settlement of 1829 the only right conferred on Janet Brown or Young was one of liferent allenarly to a specific portion of said property; and (3) That the fee thereof was by said settlement given to all her children equally among them, James Young, whom the pursuer represents, being only one of her five children.” Also that “the pursuer was not entitled to insist in any of the conclusions of the action, in so far as regarded onefifth share pro indiviso of the subjects in Cowgate of Dundee, in respect that, according to the sound construction of the settlement of 1831, on which the claim depended, the right of Janet Brown or Young to said share devolved, on her death, upon the whole of her children, who were five in number, and not upon her eldest son James Young.”

The Lord Ordinary pronounced an interlocutor sustaining the above pleas in law of the defenders.

The pursuer reclaimed.

At advising—