Scottish Court of Session Decisions

Robert Watson of Burnstyle, near Glasgow, died on 21st October 1878, survived by his four children—Robert Watson, George Watson, Agnes Watson or Lambie, and Jane Watson or Baird. Mr Watson left a trust-disposition and settlement

Page: 172↓

by which he conveyed to William Watson Steuart and others, as trustees and executors, his whole means and estate as at the time of his death, which consisted of land to the value of £2300, feu-duties to the value of £8600, bonds and dispositions in security to the value of £5350, and personal estate worth £4350. This settlement provided … ( Fourthly) With regard to the residue of my means and estate, I direct my trustees, as soon after my death as possible, to pay and convey the same equally to and among my sons, the said Robert Watson junior and George Watson, and my daughters, the said Agnes Watson or Lambie and Jean Watson or Baird, widow of the deceased James Baird, potato merchant in Glasgow; Declaring that in the event of any of my said children predeceasing the period of payment and conveyance to them leaving issue, such issue shall be entitled to the share which their parent would have taken on survivance; And further, in the event of any of them predeceasing the said period without leaving issue, then the share which such predeceaser would have taken on survivance shall accresce to his or her surviving brothers and sisters and the issue of any brother or sister who may have deceased leaving issue, such issue always being entitled to the share which their parent would have taken on survivance; Which provisions in favour of my said children shall be accepted by them in full of all legitim or other claims competent to them by or through my decease; Declaring that in respect I have advanced to my son George, Watson various sums, amounting in all to Two thousand and fifty pounds, for which I hold his bills and acknowledgments of debt, I direct my trustees to impute the same, or such part thereof as may not have been repaid to me before my death, or such further sums as I may yet advance to him, pro tanto towards all benefit he or his issue shall receive under these presents; And in respect that I have advanced to my daughter Mrs Jean Watson or Baird sums amounting to One hundred and fifty pounds, for the advancement in business of the said William Baird, her son, and for which I hold her bill and acknowledgments of debt, I direct my trustees to impute the same, or such parts thereof as may not have been repaid to me before my death, pro tanto towards all benefit she or her issue shall receive under these presents, and if imputed towards the share of such issue, the same shall be deducted primo loco from the share of the said William Baird, and secundo loco from the shares of the remaining issue: And with regard to such of the foregoing provisions, or of any provisions that may be made by me in any codicils hereto, as are in favour of or may fall to females, the same shall be purely alimentary and exclusive of the jus mariti and right of administration of their respective husbands: And to enable my trustees to carry out the purposes of this settlement, and of any codicils thereto, I confer upon them all requisite powers, and particularly (but without prejudice to the said generality) power to sell my heritable estate, in such lots, at such prices, and with such warrandice as they may think proper.” The testator's daughter Mrs Baird died intestate on 18th November 1878, a month after her father. She was survived by four children—William Baird, her eldest son and heir in heritage, Agnes Kirkwood Baird, Allan Watson Baird, and George Baird—and was predeceased by a son Robert Watson Baird, who left two children, Jane Watson Baird and James Baird. These two children were pupils at the time of this case, and their interest was represented by the testator's eldest son Robert Watson, as their factor loco tutoris.

Questions having arisen as to the manner in which the estate of the testator fell to be divided among Mrs Watson or Baird's children under the fourth purpose of the deed above quoted, this Special Case was presented to the Court.

William Baird, Mrs Baird's eldest son, claimed that as heir-at-law of his mother he was entitled to the share of the lands and feu-duties belonging to the testator conveyed to her under the settlement, as being heritage. The other children of Mrs Baird and the factor loco tutoris for Jane Watson Baird and James Baird, her two grandchildren, maintained that by the settlement the estate of the testator was rendered moveable, and that as such Mr Baird's whole children and the representatives of such as had died were entitled to succeed to it. In these circumstances this Special Case was presented to the Court. William Baird, Mrs Baird's eldest son and heir-at-law, was the first party; Mrs Baird's other surviving children were the second parties; and the factor loco tutoris for the children of her son Robert Watson Baird, who predeceased her, was the third party.

The questions were—“(1) Is the first party entitled to one-fourth of the heritable estate, consisting of said land and feu-duties, which the said Robert Watson of Burnstyle died possessed of, or the proceeds thereof? or is the share of the said Robert Watson's estate originally destined by the said trust-disposition and settlement to the said Jane Watson or Baird to be held as moveable, or at least divisible equally among her issue? (2) Are Robert Watson Baird's children entitled to participate in the whole or any part of the share originally destined to the said Jane Watson or Baird per stirpes or per capita?

Argued for first party—Conversion was not here indispensable in the sense given to that word by Lord Fullerton in Advocate-General v. Blackburn's Trustees, 10 D. 166, quoted in Buchanan v. Angus (H. of L.), May 15, 1862, 4 Macq. 374. There were three classes of circumstances which were of importance in the questions of conversion—(1) The condition of the estate; (2) Words of transfer; (3) Number and condition of the beneficiaries. None of these circumstances led to conversion in the present case. (1st) The estate was capable of being conveyed in a heritable form to the beneficiaries intended to be benefited. (2d) The words of transference were “pay and convey,” which had been held not to operate conversion. In Buchanan v. Angus the words of conveyance were “pay over.” In Cathcart v. Cathcart, May 26, 1830, 8 S. 803, they were “dispone, assign, and pay over.” In Patrick v. Nicol, Dec. 7, 1838, 1 D. 207, the directions to trustees was after the death of certain persons to “convey and pay over” to the testator's “own nearest heirs whatsoever.” Again, the use of the word “share” did not operate conversion— Strachan v. Mowbray, Feb. 21, 1843, 5 D. 687. (3d) Number of beneficiaries— Hogg v. Hamilton, June 7, 1877, 4 R. 845, and Auld v. Anderson, Dec. 8, 1876, 4 R. 211, were in the first party's favour on this point. The case of Fotheringham's Trustees—July 2, 1873, 11 Macph. 848—where there were nine beneficiaries, and conversion was held operated, was a very special case, and decided on the ground of practical necessity to convert.

Additional authorities— Durie, M. 4624; Advocate-General v. Smith, 1 Macq. 760; Gardner v. Ogilvie, Nov. 25, 1857, 20 D. 105.

Argued for second party—Necessity for conversion being a question of intention (Lord Chancellor in Buchanan v. Angus), the intention of the testator that there should be equal division was plain. The testator directed certain things to be done, and that they might be done gave power to sell.

Authorities— Blackburn's Trustees, supra; Williamson v. Advocate-General, Dec. 23, 1850, 13 D. 436, aff. 2 Bell's App. 89; Somerville's Trustees v. Gillespie, July 6, 1859, 21 D. 1148; Greig v. Mackenzie, Feb. 14, 1868, 6 Macph. 375; Boag v. Walkinshaw, June 27, 1872, 10 Macph. 872; Fotheringham's Trustees, supra; Nairn's Trustees v. Melville, Nov. 10, 1877, 5 R. 128.