Scottish Court of Session Decisions

By disposition dated 10th January 1877, Hugh Munro, grocer and spirit dealer, Crossmyloof, disponed certain heritable subjects in the village of Crossmyloof “to and in favour of himself and Janet Watson or Munro, his wife, and the longest liver of them, in conjunct fee and liferent for their liferent alimentary use allenarly, and to and in favour of his daughters” Mrs Bryson, Mrs Orr, and Mrs Austin, “equally among them in fee, exclusive always of the jus mariti

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and right of administration of their present husbands respectively, orany future husband they may marry, or failing any or all of his said daughters, to her or their respective heirs in fee.” The disposition, with warrant of registration thereon, in terms of the dispositive clause here quoted, was duly recorded on 16th January 1877.

On 2nd May 1886 Mrs Janet Watson or Munro died.

On 7th November 1886 Mrs Austin died, survived by a son and by two daughters.

In 1888 Hugh Munro married again, but his second wife predeceased him.

By trust-disposition and settlement dated 15th October 1888, and bearing expressly to be granted for the purpose of defeating the destination in the disposition of 1877, Hugh Munro conveyed his whole estate to Jessie Watson (a niece of his first wife), John Shand, and John Borland. The combined effect of this deed, and a codicil thereto dated 10th September 1890, was to leave £800 and the furniture of the truster to Miss Watson, and the residue to the children of his daughters Mrs Orr and Mrs Austin, there being no provision for his daughter Mrs Bryson or her children.

In 1892 Hugh Munro died.

Thereafter Mrs Bryson and Mrs Orr raised an action against the trustees under Hugh Munro's trust-settlement, Miss Watson as an individual, the children of Mrs Bryson, and the children of Mrs Orr, to have it found and declared that the pursuers and the late Mrs Austin were duly vest and seised as of fee in the heritable subjects disponed by the disposition of 1877, and to have the trustees ordained to deliver up to the pursuers the title-deeds of the said subjects, and interdicted from making up titles to or selling the said subjects.

The pursuers pleaded—“(1) The pursuers having been validly infeft as of fee along with Mrs Austin in the said heritable subjects, in virtue of the said disposition of 1877, dated and recorded as aforesaid, are entitled to decree of declarator as concluded for. (2) The pursuers being so infeft are also entitled to decree for delivery of the title-deeds of their said property, and to interdict against the defenders, the testamentary trustees of Mr Munro, as concluded for.”

Defences were lodged by Mr Munro's trustees and by Miss Watson. The latter pleaded, inter alia—“(4) At the date of the said disposition the fee of the subjects conveyed having belonged to the said Hugh Munro, on a sound construction of the deed he retained the right of fee and had power to alter the destination therein, and having altered it by the trust-disposition and settlement, declarator and interdict ought to be refused with expenses. (5) On a sound construction of the said disposition the said Hugh Munro had a power to test on the subjects conveyed, and having done so, the pursuers are not entitled to declarator and interdict as concluded for, and the same ought to be refused with expenses. (6) The pursuers not being the proprietors of the subjects libelled, are not entitled to delivery of the title-deeds thereof.”

On 10th March the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Sustains the first and second pleas-in-law for the pursuers: Repels the defences so far as directed against the conclusions of the summons for declarator, delivery, and interdict: Decerns in terms of the said conclusions, &c.

“ Note.—[ After setting forth the destination in the disposition of 1877]—On the face of it this destination is self-contradictory. The conveyance by the granter to himself and his wife in conjunct fee is repugnant to the conveyance to them in liferent for their liferent alimentary use allenarly, particularly when coupled with a gift of the fee to his daughters nominatim. The framer of the deed cannot have understood the legal effect of the words he was using. In order to arrive at any intelligible result something must be read out of the deed, and the question is, what?

It is unfortunate that a phrase so loose and slovenly as ‘conjunct fee and liferent’ should ever have crept into the vocabulary of conveyancers, but it is sanctioned by long usage, and has been interpreted by numerous decisions. If, therefore, the destination as regards Hugh Munro and his wife had stopped there, I apprehend that the fee would have vested in him notwithstanding the subsequent words conferring a fee on his daughters nominatim, Even the addition of words cutting down the conjunct fee to a liferent allenarly, if it had been distinctly limited to the wife, would have made no difference in the right of Hugh Munro himself. That is the result of the judgments in Livingston v. Lord Napier, Bell's 8vo cases, 184, and Wilson v. Glen, December 14, 1819, Fac. Coll., both of which are commented on by the late Lord President in Forrest v. Forrest, 1 Macph. 806; but the peculiarity here is that the words ‘for our liferent alimentary use allenarly’ are applicable to the husband as well as to the wife. It was urged for the defenders that the word ‘our’ may have been a mistake for ‘her,’ and that the obvious inconsistencies of the destination may be explained in that way. But I must take the deed as I find it. The result seems to be that though a fee is in words conferred on Hugh Munro, it is cut down to a liferent by the taxative words which immediately follow, and that the only pure fee conferred by the deed is that in favour of the daughters nominatim. The fee given to James Livingston in the Westquarter case and to Thomas Cunningham (as one of the marriage) in Wilson v. Glen was in each case treated as a mere substitution, because there was a previous fee, undiminished by words restricting it to a liferent, conferred on the wife in the one case and on the husband in the other. But here it seems to me that the fee given to the daughters cannot be so treated, for if so, there would either be no immediate fee in anybody or else a right anxiously declared to mean nothing more than a liferent must be held to be a fee. I do not know of any case where a declaration so express as the qualification of a liferent by the word

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‘allenarly’ has been thus disregarded. If that word is sufficient to cut down a constructive fee to a liferent it is no great extension of the rule to hold that the same result must follow where the fee is express. Mr Bell in his Principles (§ 1956) states the rule in very general terms—‘If a settlement which conceived in simple terms would give a fee to the husband, conveys to him the subjects for his ‘liferent alimentary’ or ‘liferent allenarly,’ and the fee to the heirs and children nascituri, there arises by legal necessity a fiduciary fee in the father, the real fee being in the children.’ Here of course there is no feudal necessity for setting up a fiduciary fee because of the children being named, but the principle applies equally that what would otherwise be a fee cannot be so regarded if it is expressly restricted to a liferent.

There is one case ( Wilson v. Reid, 6 S. 198) in which a wife who granted a postnuptial disposition was held to have a fee although the destination was, as here, to herself and her husband and to the longest liver in conjunct fee and liferent for their liferent use allenarly. But the essential difference was, that instead of a fee to children nominatim, the ulterior destination was to the heirs of the marriage, whom failing to the heirs whatsoever of the wife to the extent of one-half, and the heirs whatsoever of the husband to the extent of the other half. There were no heirs of the marriage, and the question arose between the wife and the heirs whatsoever. The case was decided on the plain ground that the fee could not be taken out of the wife except by vesting it in somebody else. A distinction was drawn by Lord Balgray, in delivering the leading opinion, between the heirs of the marriage and the heirs whatsoever, thus—‘So far as regarded the heirs of the marriage this was an onerous deed and bestowed upon them a jus crediti, but so far as regards the heirs whatsoever it is merely a mortis causa deed not vesting in them any right whatever, but merely giving them a spes successionis which could never vest the fee in them. It follows therefore that the fee remains in the person of the pursuer.’ If the question had arisen, not with heirs whatsoever but with heirs of the marriage, I take it that the decision would have been substantially the same as in Watherstone v. Renton, 1801, M. 4297, and that if the same judges had had to decide the present case they would have decided it in favour of the daughters.

I assent to the defenders' argument that as Hugh Munro was the original fiar of the property he must be clearly shown to have divested himself of the fee before the pursuers can succeed. But I do not know that there was anything unnatural or improbable in a father divesting himself of a fee in favour of his grown-up family, under reservation of his own and his wife's liferent. It was urged that the intention of the granter must rule, and that he showed his intention to have been testamentary and revocable by his subsequent deed. But intention can only be gathered from the words of the deed itself, and where a granter uses words of technical meaning, and puts his deed on record, he cannot alter its effect by subsequently explaining that he used the words in a different sense.

I have therefore come to the conclusion that the pursuers are entitled to decree of declarator, delivery, and interdict.”

The defenders reclaimed, and argued—The Lord Ordinary's construction of the destination in the disposition of 1877 was erroneous. The words “in conjunct fee” could not be read out of the disposition. There were certain legal presumptions, one of which was that the granter of a gratuitous disposition like the present was not giving up the fee. The case of Watherstone v. Rentons, November 25, 1801, M. 4297, was distinguished from the present, as in that case the conveyance was from a father to his daughter and her husband, while here the disposition was by a husband of his own property to himself and his wife.

Argued for pursuers—The case of Watherstone v. Rentons was on all fours with the present, and the decision in that case was supported by Rollo v. Ramsay, November 28, 1832, 11 S. 132. The judgment of the Lord Ordinary was sound.