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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Special Case - Hastie and Others [1880] ScotLR 18_204 (15 December 1880) URL: http://www.bailii.org/scot/cases/ScotCS/1880/18SLR0204.html Cite as: [1880] SLR 18_204, [1880] ScotLR 18_204 |
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Page: 204↓
Terms of a document held effectual to carry heritage under the 20th section of the Act of 1868.
John Aim died on the 24th February 1880 at Bournemouth. He was unmarried, and was survived by his mother Mrs John Aim (who died before this case was presented), his brothers William Laughton Aim and James Barrie Aim, and by his sister Jane Aim or Hastie. After his death there was found in his repositories a document in an unclosed envelope addressed to his mother. That document, which was written on two sides of a half sheet of notepaper, and the the address on the envelope, were holograph of the deceased, the document being in the following terms;—“All furniture, books, and personal effects to Mrs Jon Aim absolutely, and the free liferent use of all my other means and estate.
“To John Aim, son of W. L. Aim, Pollokshields. On After Mrs A.'s disease, The whole of the estate to turned into cash at the time my trustees deem most suitable for best realising, and proceeds safely invested for disbursing as under, viz., To John Aim, son of W. L. Aim, Pollokshields, on his attaining the age of 21 years, £300. In event of his prediseasing, the same to be equally divided between his two sisters Catherine and Mary Jane, or the survivor of them (on their attaining their majority.)
To John Aim, son of Jas. B. Aim, Rockhill, Hunter's Quay, on his attaining the age of 21 years, £300. In event of his prediseasing, the same to be equally divided between his brother James and his sister Agues, or the survivor of them (on their attaining their majority).
To Mary Margaret Hastie, daughter of Peter Hastie, Crosshill, on her attaining her majority, £300. In event of her predeasing, the same to go to her brother John Aim Hastie on his attaining his majority.
To John Aim Hastie, son of Peter Hastie, Queen Villa, Crosshill, the residue with the accumulated interest, on his attaining the age of 21 years. In the event of his prediseasing, said residue, with accumulated interest, to be equally divided, share and share alike, between my sister Jane Aim or Hastie, James Barrie Aim, and William Laughton Aim, or the survivors of them.
Trustees for carrying out the foregoing, I wish to name my two brothers and brother-in-law, and Mr Ritchie Lennie.
John Aim, 8 March 1877.”
(The words underlined above were scored out, the word “proceeds” italicised was interlined in pencil, and the other words in italics were added in pencil.)
The heritable estate left by the deceased consisted of a dwelling-house and ground, which, if he was held to have died intestate, would fall to his immediate younger brother James Barrie Aim. The moveable estate consisted of money in bank, &c., amounting to about £1670. He also left household furniture, books, and other articles contained in an inventory and valuation of his effects which amounted in all to £35, while his whole estate was worth about £2100.
Peter Hastie was the sole accepting and acting trustee. Questions having arisen as to the effect of the above document, the trustee, the beneficiaries under the will, the next-of-kin of the deceased as representing their mother, and the heir-at-law, agreed to present this Special Case to the Court for opinion and judgment.
The questions of law to be decided were—“(1), Whether the document referred to is a valid testamentary settlement and conveyance of deceased's heritable and moveable estates in favour
Page: 205↓
of the parties therein namedas trustees, and whether the succession of the deceased is regulated thereby; or whether the deceased must be held to have died intestate as regards his heritable and moveable estate, or either of them? (2) Whether the party of the first part, as sole acting trustee foresaid, is entitled to complete titles for effectually vesting him in the right and estate of the deceased; and whether the said James Barrie Aim, as heir-at-law of the said deceased, is bound to make up a title to the heritable estate and convey it to the trustee acting under the said will? (3) To what portion of the moveable estate, in the event of the will being sustained, did the testator's mother Mrs Aim succeed under the clause, ‘All furniture, books, and personal effects to Mrs John Aim absolutely?’” The 20th section of the Titles to Land Consolidation Act 1868, 31 and 32 Vict. c. 101, provides as follows:—“From and after the commencement of this Act it shall be competent to any owner of lands to settle the succession to the same in the event of his death not only by conveyance de prcesenti, according to the existing law and practice, but likewise by testamentary or mortis causa deeds or writings, and no testamentary mortis causa deed or writing purporting to convey or bequeath lands which shall have been granted by any person alive at the commencement of this Act, or which shall be granted by any person after the commencement of this Act, shall be held to be invalid as a settlement of the lands to which such deed or writing applies on the ground that the granter has not used with reference to such lands the word ‘dispone,’ or other word or words importing a conveyance de prœsenti; and where such deed or writing shall not be expressed in the terms required by the existing law or practice for the conveyance of lands, but shall contain with reference to such lands any word or words which would if used in a will or testament with reference to moveables be difficult to confer upon the executor of the grantor or upon the grantee or legatee of such moveables a right to claim and receive the same, such deed or writing, if duly executed in the manner required or permitted in the case of any testamentary writing by the law of Scotland, shall be deemed and be taken to be equivalent to a general disposition of such lands, within the meaning of the 19th section hereof, by the grantor of such deed or writing in favour of the grantee thereof.”
It was argued for the trustees and the beneficiaries under the deed—(1) On a sound construction of the 20th section of the Act of 1868 the document was good to carry heritage, as it contained words applicable to heritage which if applied to moveables would be effectual to carry them. (2) The heir-at-law must make up his title and convey in terms of the same section. (3) Mrs Aim was only entitled to get personal estate ejusdem generis with that which was expressly mentioned.
On the other hand, it was argued for the nextof-kin of the deceased, and as representing their mother, and for the heir-at-law—(1) This document was to be looked on as a mere scrawl. In it no trustees were named The framer merely expressed a wish to name his brothers as such, and on the whole it could not reasonably be regarded as the completed expression of the testator's wish— Forsyth's Trustees v. Forsyth, March 13, 1872, 10 Macph. 616; Lowson, v. Ford, March 20, 1866, 4 Macph. 631. But (2) even if it was a proper testament it only carried moveables. It was not enough that the intention of the testator appeared to be to convey lands in words conveying moveables— Urquhart v. Deuar, June 13, 1878, 6 R. 1026. ( 3) Mrs Aim was entitled to get the whole personalty, amounting to £2100.
At advising—
The first question we are asked to decide is, whether it carries heritage under the 29th section of the Act of 1868? Now, some questions may arise no doubt, but I am of opinion that the construction of that section is clear enough. It provides (1) in reference to heritage, that it may be conveyed by mortis causa settlement. (2) It provides that the word “dispone,” which was formerly essential, should be no more so. (3) It provides that heritage may be conveyed in a testament provided words are used in regard to heritage which if used in regard to moveables would be sufficient to carry them, and then that such a conveyance should be equivalent to a general disposition under the 19th section of the Act, and that the heir-at-law should make up his title accordingly. That, I take it, is the meaning of the clause. But then it is objected that in the present case heritage is not conveyed, there being merely a direction that the whole of the truster's estate is to be turned into cash and the proceeds safely invested for disbursing in manner directed. This, however, I cannot think to be a sound objection, and I am of opinion that this document will effectually carry heritage under the 20th section of the 1868 Act; and, looking to the whole language of this document, I am of opinion that it is perfectly clear the proprietor meant to convey his heritage, and under the section of the Act competently did so. The cases which have been quoted to us are not on all fours with the present case. The case of Lawson v. Ford was a very remarkable one, but far narrower than this. There was no settlement nor words of bequest, but simply a list of names with sums of money appended; it was certainly signed, but the Court refused to give effect to so bare an expression of the intention of the person who framed it.
I think, then, it is clear (1) that the first question must be answered in the affirmative. The conveyance is a good one, because words have been used in it with regard to heritage sufficient in regard to moveables to carry them. (2) It follows that the heir-at-law is under obligation to make up a title under the section of the Act, and besides section 46 of the 1874 Act applies to his case equally. (3) This question is chiefly a matter for common sense. The collocation of words, however, seems clearly to infer that Mrs Aim was to get the personal effects as contained in the inventory.
That was the law of the land with respect to the will before the Act of 1868. The only other case was where the will contained an express conveyance of some specific subject; it then operated as a conveyance, and the party in whose favour it was made took independently of the executor altogether, and this distinction is explained by the text-writers and illustrated by decisions. But now since 1868, according to my own view of clause 20 of the Act of that year, heritage is placed in the same position as moveables, not with respect to a conveyance of it, but with respect to settlements of succession thereto. Formerly a proprietor, if he wished to sell his heritage, could not do so by declaring his will simply; the only mode of effecting his purpose was by making a de prasenli conveyance, and I think it has been expressly held that a conveyance in words to operate as a conveyance on death or six months after death is bad, because it is not a conveyance de prcesenti. But under the Act of 1868 wills were made applicable to heritage as well as moveables, and since then you may affect the heritage as you may moveables by use of any words which will confer a right to moveables. Supposing a proprietor said, “I want £1000 to be divided amongst my three children,” would the words be enough to confer on them a right to claim their share of the division of £1000? There can be only one answer. Well, the same words which would confer a right to moveables, will under the Act of 1868 confer a right to heritage if used with reference to heritage. I use them now with reference to heritage. The case, then, I think, is as clear as it can be. Again, let me give one more illustration, A list of legatees or persons entitled to take the estate of the deceased is quite good. If a proprietor directs that he wishes his estate to be divided so that A shall get £500, B a house, C a bit of land, and so on; and if he places opposite the surnames of some sums of money, and of others houses, the document which embodies these directions will be quite good to carry all, because whatever words give right to claim money will give right to claim land if land is mentioned. Therefore, as contrasted with a conveyance as the expression of the will of the deceased, I am of opinion that it is competent by the Act of 1868, as I read it, to give the will the same effect as regards heritage as regards moveables. The executor of the will is bound to give it execution with reference to both, following the testator's intention.
With regard to the second point, we decided the other day that under the 46th section of the 1874 Conveyancing Act a person in a position such as the heir-at-law here may complete his title under that section. And if we decide that the will is to have effect with respect to heritage, the heir-at-law can competently make up his title in terms of that section.
The Court answered the questions put to them in terms of these opinions.
Counsel for the Trustee and Beneficiaries— Kinnear— Mackintosh. Agent— Alex. Morison, S. S. C.
Counsel for the Representatives of the Deceased John Aim and the Heir-at-law—Solicitor-General ( Balfour, Q.C.)— C. S. Dickson. Agents & A. Hastie, S.S.C.
