Scottish Court of Session Decisions

Robert Morrison, paper-hangings manufacturer, 341 Argyle Street, Glasgow, died on 22nd July 1904 leaving a trust-disposition in the following terms:—“I, Robert Morrison,… for the settlement of the succession to my means and estate, do hereby dispone and make over to (certain trustees) all and sundry the whole means and estate, heritable and moveable, real and personal, of every kind and description, and wheresoever situate, that shall belong to me at the time of my death, including therein all means and estate over which I have power of disposal by will or otherwise,… but these presents are granted in trust for the following purposes, videlicet: (First) For

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payment of all my just and lawful debts and sick-bed and funeral expenses: (Secondly), I direct my trustees to hold and apply the residue of my means and estate for behoof of my wife in liferent, for her liferent use only, during all the days and years of her life, burdened with the suitable maintenance, education, and upbringing of such of my children as may at my death be unable to maintain themselves; and I provide that in the event of my trustees being of opinion at any time that the income of my estate is insufficient for the comfortable maintenance of my said Wife and that of any of my children who may be unable to support themselves, they shall have power from time to time to encroach upon and pay to her for that purpose part of the capital of my estate, and that to such extent as they deem proper: (Thirdly), On the death of my said wife, or on my own death should she predecease me, I direct my trustees to hold and apply, pay and convey, the residue of my means and estate equally to and among my whole children, payable and to be conveyed to them as they respectively attain twenty—one years of age after the death of their mother: Declaring that in the event of any of the said children predeceasing the period of payment and conveyance to them leaving issue, such issue shall be entitled equally among them to the share which their parent would have taken on survivance; and further, that in the event of any of the said children predeceasing the period of payment and conveyance without leaving issue, then the share of such predeceaser shall accresce to the survivors and survivor of the said children, and the issue of any child who may have predeceased leaving issue, such issue in that case being entitled equally among them per stirpes to the share which their parent would have taken on survivance; and with regard to the shares of the said residue which may fall to daughters, I provide and declare that my said trustees may, if they consider it most for the advantage of any daughter or daughters, withhold payment of the fee thereof and limit the share to a liferent only, for the liferent alimentary use only of such daughter, and on her death pay the fee thereof to such daughter's issue, and that in such proportions and under such conditions as their mother by any writing under her hand may appoint, and failing such appointment, then equally among them: … 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, without incurring any personal liability, to retain unrealised and unaltered for such period as they may see fit any investments, securities, or property that may be held by me at the date of my death, or any part thereof, and also to borrow money on the security of my heritable estate, and to grant bonds and dispositions in security or other necessary deeds for the sums so borrowed, and also to sell my heritable estate in such lots, at such prices, and with such warrandice as they may think proper, and also (and in addition to the powers of investment conferred upon trustees by statute) from time to time to lend out the trust funds or any part thereof on the mortgages or bonds and assignations in security of any trust or joint-stock company incorporated under Act of Parliament in any part of the United Kingdom, and also to invest the said funds or any part thereof in the purchase of heritable property, or of the guaranteed or preference stock of any dividend-paying railway company in the United Kingdom, or of the stock of any corporation or trust incorporated under Act of Parliament in any part of the United Kingdom, and also to deposit the said funds or any part thereof, for such period as they may think fit, on deposit—receipt with any British or Colonial or foreign bank.” …

Mr Morrison, who was survived by a widow and children, some in pupilarity and minority, left personal estate valued at £3337, 8s. 2d, exclusive of policies of assurance on his life payable to his wife of the value of £674, 12s. 6d., and heritable estate of the net value of £4900. The heritable estate consisted of (1) a villa known as “Cowal,” Cambuslang, purchased from William Clouston Johnston, solicitor in Glasgow, and Jeanie Young Renfrew or Johnston, wife of and residing with the said William Clouston Johnston, conform to disposition granted by them, dated 16th, and with warrant of registration thereon on behalf of the truster and his wife, recorded in the Division of the General Register of Sasines applicable to the county of Lanark, 17th May 1898, whereby they, in consideration of £200 paid to them by the truster, and of his freeing and relieving them of £650, being the balance of a bond and disposition in security affecting the property, sold and disponed the said villa “to and in favour of the said Robert Morrison and Sarah Gaw or Morrison, wife of and residing with the said Robert Morrison, and to the survivor of them, and to their heirs and assignees whomsoever;” (2) a tenement of dwelling-houses forming No. 525 Alexandra Parade, Dennistoun, Glasgow, the title to which consisted of a feu—contract dated 15th and 17th, and with warrant of registration thereon on behalf of the truster and his wife and the survivor of them, recorded in the Division of the General Register of Sasines applicable to the county of the barony and regality of Glasgow, 24th January 1902, entered into between the trustees of the deceased Alexander Dennistoun of Golfhill, in the county of Lanark, of the first part, and the said Robert Morrison and Mrs Sarah Elizabeth Gaw or Morrison, his wife, of the second part, by which the said Alexander Dennistoun's trustees sold, alienated, and in feu-farm disponed the said subjects “to and in favour of the said Robert Morrison and Mrs Sarah Elizabeth Gaw or Morrison, and the survivor of them, and his or her heirs, and their, his, or her assignees whomsoever;” and (3) another tenement of dwelling-houses

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known as No. 5 the Oriels, Lang—side, Glasgow, the title to which consisted of a feu-contract dated 11th, 12th, 13th, and 14th, and, with warrant of registration thereon on behalf of the truster and his wife for their respective rights and interests, recorded in the Division of the General Register of Sasines applicable to the county of the barony and regality of Glasgow, 20th June 1902, entered into between the trustees of the deceased Matthew Pettigrew, sometime manufacturer in Glasgow, of the first part, and the said Robert Morrison and Sarah Elizabeth Gaw or Morrison, his wife, of the second part, by which the trustees of the said Matthew Pettigrew disponed the said subjects “to and in favour of the said Robert Morrison and Sarah Elizabeth Gaw or Morrison and the survivor of them, and their heirs and assignees whomsoever.” In the case of each property the price or cost of building was paid by Mr Morrison out of his own funds. The bond and disposition in security for £650 over the Cambuslang property was held by Mrs Morrison, and the loan was given from her own funds.

Questions having arisen as to the rights of parties in the heritable properties, a special case was presented, to which the trustees and executors acting under the trust-disposition and settlement were the first parties, the widow the second party, the children and the tutors and curators of such of them as were pupils or minors the third parties.

The second party maintained that she, being the survivor of the spouses under the several special destinations in the titles, was now absolute proprietrix of the three heritable properties to the exclusion of the first and third parties. Alternatively she maintained that the heritable properties were vested in fee jointly and in equal shares in her late husband and herself, and that if the trust-disposition and settlement applied to the subjects, it conveyed only that one-half pro indiviso share in which the truster was vested, and that she was vested in the fee of the heritable properties to the extent of the other one half pro indiviso On the other hand, the first and third parties maintained that the conveyances of the heritable properties, so far as conceived in favour of the second party, were revocable by the truster as donations inter virum et uxorem, that these special donations were evacuated by the trust-disposition and settlement, and particularly by the conveyance therein contained of “all means and estate over which I have power of disposal by will or otherwise,” and that the heritable properties fell therefore to be wholly administered by the first parties as part of the trust estate.

The questions of law submitted to the Court were—“(1) Is the second party, in virtue of the special destinations in the titles to the heritage ( a) proprietrix of the whole of these several properties, or (b) proprietrix of one-half thereof? or (2) Does the said trust-disposition and settlement evacuate the special destinations in the titles, and convey (a) the whole of said several properties, or ( b) one-half thereof to the first parties to be administered by them as part of the trust estate?”

Argued for the first and third parties—The special destinations had been evacuated by the general settlement. The destinations in the titles of the heritable properties formed donations inter virum et uxorem The only donation stante matrimonio by a husband to a wife which was not revocable was one corresponding to a reasonable provision to take effect afterdeath. The present far exceeded a reasonable provision— Bust v. Smith, January 14, 1865, 3 Macph. 378; Dunlop v. Johnston, April 2, 1867, 5 Macph. (H.L.) 22, 3 S.L.R. 372; Thomas v. City of Glasgow Bank, January 31, 1879, 6 R. 607, 16 S.L.R. 244; Fraser, H. & W., vol. ii, pp. 926, 947. The question therefore came to be, was there revocation, and did the settlement evacuate the special destinations? When a general settlement and a special destination were made by the same person, it was for the Court to determine whether the truster intended the former to evacuate the latter, and the Court could look not only at the deeds themselves, but also at all the surrounding circumstances. In the present case these all favoured evacuation— Campbell v. Campbell, July8, 1880, 7R. (H.L.) 100, 17 S.L.R. 807; Gray v. Gray's Trustees, May 24, 1878, 5 R. 820, L.P. Inglis at 824, 15 S.L.R. 571; Walker's Executor v. Walker, June 19, 1878, 5 R. 965, L.P. Inglis at 969, 15 S.L.R. 636: Walker v. Galbraith, October 21, 1895, 23 R. 347, 33 S.L.R. 246; Brydon's Curator Bonis v. Brydon's Trustees, March 8, 1898, 25 R. 708, 35 S.L.R. 545; Minto's Trustees v. Minto, November 9, 1898, 1 F. 62, 36 S.L.R. 50; Currie v. M'Lennan, March 3, 1899, 1 F. 684, 36 S.L.R. 494.

Argued for the second party—The general presumption of law was against evacuation, and it could only be overcome upon the strongest evidence of intention. There was here no such evidence. The cases cited by the first parties showed that before such intention would be presumed, either the general settlement must contain a clause of revocation, or the two deeds must be incompatible. In the present case neither of these conditions was fulfilled. The truster's intention must be gathered from the deeds, and not from a general consideration of the circumstances— Glendonwyn v. Gordon, March 19, 1873, 11 Macph. (H.L.) 33, 10 S.L.R. 451. The present case was ruled by Thoms, March 30, 1868, 6 Macph. 704, 5 S.L.R. 418; Paterson's Judicial Factor v. Paterson's Trustees, February 4, 1897, 24 R. 499, 34 S.L.R. 376; Langs Trustees v. Lang, July 14, 1885, 12 R. 1265, 22 S.L.R. 866; Webster's Trustees v. Webster, November 8, 1876, 4 R. 101, 14 S.L.R. 51; Farquharson v. Farquharson, July 19, 1883, 10 R. 1253, 20 S.L.R. 836; Thomson's Trustees v. Thomson, July 9, 1879, 6 R. 1227, 16 S.L.R. 727; Connell's Trustees v. Connell's Trustees, July 16, 1886, 13 R. 1175, 23 S.L.R. 857; Erskine iii, 8, 36. Further, in the present case there could at any rate be no evacuation in the case of the one-half of the properties, for under the recorded titles the second party was at her husband's death vested in one-half pro indiviso, and to that half the truster's settlement obviously could not apply.