Scottish Court of Session Decisions

By inter vivos deed dated 3rd March 1859 two sisters—Mrs Dickie and Miss Crichton — disponed to and in favour of themselves and another sister in liferent, and to their nieces, Julia (Mrs Tweddle), Dorothea (Mrs Howat), and Katherine (Mrs Costine), “and the survivors or survivor of them in fee,” certain heritable property in Castle Street, Dumfries. The deed bore to be granted “for the love, favour, and affection” which the granters had for each other, for their sister, and for their nieces. Sasine was duly expede in terms of the said deed, and infeftment taken thereupon on 7th April 1859.

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In April 1879 Mrs Howat died intestate without having altered the destination contained in the deed. She was survived by a son, William Howat junior, in pupillarity.

In September 1879 Mrs Costine died, leaving a trust-disposition and settlement by which she directed her trustees to divide the residue of her estate equally per stirpes among her brothers and sisters or the survivors of them or the heirs of their respective bodies.

On 14th May 1886 Mrs Dickie, who had survived the other two liferentrices, died. After her death the rents of the heritable property were paid, one-third to Mrs Tweddle, one-third to William Howat junior, and one-third to George Tweddle, as trustee under the trust-disposition and settlement of Mrs Costine.

In these circumstances Mrs Bessie Burnside or Crichton or Hay, as trustee under the will of her deceased husband Horatio Augustus Crichton, one of the beneficiaries under the trust-disposition and settlement of Mrs Costine, brought an action against Mr Tweddle, Mrs Tweddle, William Howat junior, and his father William Howat, as his tutor, in which she sought, inter alia, to have it declared that Mrs Costine was at the time of her death vested in and heritable proprietrix of one-half of the heritable property before mentioned.

The pursuer pleaded—“(1) The share of the property referred to in the summons which was destined to Mrs Howat having upon her death passed to the other fiars, decree in terms of the declaratory conclusions of the summons should be pronounced.”

To this action William Howat, as tutorat-law for his son William Howat junior, lodged defences, and pleaded—“(3) The said William Howat junior, as heir-at-law of his mother the late Mrs Howat, acquired right to her share of the property in question in virtue of the conditio si sine liberis implied in the destination in the disposition of 1859.”

On 28th June 1890 the Lord Ordinary ( Trayner) pronounced the following interlocutor:—“Finds that the deceased Katherine Hay Crichton or Costine was at the time of her death vested in and heritable proprietrix of one-half pro indiviso of all and whole the subjects described in the conclusions of the summons: Quoad ultra, continues the cause, and grants leave to reclaim.

“ Opinion.—By inter vivos deed dated 3rd March 1859 the now deceased Mrs Dickie and her sister Miss Crichton, then pro indiviso proprietors of certain heritable subjects in Dumfries, conveyed the same to themselves and another sister in liferent, and to their nieces Julia, Dorothea, and Catherine nomination, ‘and the survivors or survivor of them in fee.” On this conveyance the infeftment followed in favour of the whole disponees for their respective rights of liferent and fee, the instrument of sasine being recorded on 7th April 1859. Dorothea (afterwards Mrs Howat), one of the fiars, died in April 1879 without leaving any testamentary writing disposing of her estate, and without having altered the destination in the disposition above referred to. The defender William Howat is her son. Katherine (Mrs Costine), another fiar, died in September 1879 leaving a trust-settlement disposing of her whole estate, heritable and moveable, and the pursuer represents one of Katherine (Mrs Costine's) residuary legatees. The first question, and the only one to be decided at this stage of the case is, whether William Howat is entitled to one-third of the subjects conveyed by the disposition of 1859 as heir of his mother? It is admitted that he cannot successfully claim any share of the subjects under the destination in that conveyance as it stands, for that destination is in favour of three disponees named, ‘and the survivors or survivor of them’ alone. But he maintains that that destination is to be read as implying a conditional institution in favour of the heirs of each fiar to the share which each fiar took under it.

I am of opinion that this is not a case for the application of the conditio si sine liberis, &c. So far as I know, this is the first case in which it has been sought to add the implied condition to the destination in an inter vivos deed on which infeftment had followed. I do not say that this may not be competent, but it appears to me that such a case presents more difficulty in the way of implying the condition than the usual case of a testamentary or mortis causa deed. Passing over that difficulty, however, I think there is no room for the implied condition in this case for several reasons—(1) The conveyance of 1859 is not of the nature of a universal or family settlement, but is a deed of gift of a special subject. (2) It is not a gift in favour of a class, but in favour of persons named and individually chosen by the granters. (3) The gift is destined not only to the persons named, but to the ‘survivors or survivor of them,’ thus making the survivors or survivor the conditional institutes to a predeceaser, to the exclusion, so far as expressed, of the predeceaser's heirs, and ‘it is not likely that when one conditional institute is expressed another should be implied”— per Lord Justice-Clerk Moncreiff in Blair's Executors, 3 R. 365. (4) There is no reason to suppose that the granters of the conveyance had any intention of benefiting the issue of the disponees, because such issue had no existence at the date of the conveyance, and might never exist; while (5) there is reason to believe, from the ‘love, favour, and affection” which was the inducing cause of the conveyance, that the granters meant precisely what they said, viz., that on the death of any one of the disponees the surviving disponees should take the benefit by accretion of the predeceaser's share.

It is unnecessary to examine the cases cited by either party. But it appears to me that the reasoning of the Lord Justice-Clerk in the case of Blair's Executors, which I adopt, is for the most part directly applicable to this case, and is adverse to the defender.

I think this is a hard case for the

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defender. His mother could have conveyed to him the third share of the subjects which she took under the conveyance of 1859. What she would have done had the necessity for some act on her part with the view of excluding her sisters and benefiting her own nominees been before her mind it is not possible to say. She would very probably have preferred her son to her sister, or her sister's representatives; but she might also have preferred her husband to her son. But having done nothing to alter the destination in the deed of 1859 it must now regulate the rights of parties, and in my opinion it excludes the defender.”

The defender reclaimed, and argued—The conditio si sine liberis should be read into the clause of this deed whether the fee vested at the date of granting or on the expiry of the liferent. The granters here placed themselves in loco parentis to their nieces. The conveyance was in the nature of a provision for children, therefore the conditio si sine liberis applied. The conditio was not excluded because the gift was not in favour of a class, or because the gift was not contained in a settlement of the granter's whole estate — Bell's Principles, secs. 1704 and 1776; Menzies' Conveyancing, p. 462; Bell's Conveyancing (3rd ed.), 922; Montrose v. Robertson, November 21, 1738, M. 6398; Rougheads v. Rannie, February 14, 1794, M. 6403; Grant's Trustees v. Grant, July 2, 1862, 24 D. 1226 ( per Lord President M'Neill); Bogie's Trustees v. Christie, January 26, 1872, 9 R. 456–457 ( per Lord President Inglis and Lord Shand).

Argued for the pursuer—There was no room in this case for the application of the conditio si sine liberis. The view of the Lord Ordinary was supported by the authorities. Each fiar had an immediate fee in one-third, and an eventual fee in the whole—Bell's Conveyancing (3rd ed.), 946; Bisset v. Walker, November 26, 1799, M. App., “Deathbed,” No. 2, and Ross' Leading Cases; Douglas' Executors, February 5, 1869, 7 Macph. 504; Blair's Executors v. Taylor, January 18, 1876, 3 R. 362 ( per Lord Justice-Clerk Moncreiff, p. 365); M'Call v. Dennistoun, December 22, 1871, 10 Macph. 281; Gillespie v. Mercer, March 8, 1876, 3 R. 561.

At advising—